HomeMy WebLinkAboutC-3757 - Off-site street improvements conditioned for the vacation and abandonment of a portion of the Orange Avenue public right-of-way from Old Newport Boulevard to Clay StreetCITY OF NEWPORT BEACH
OFFICE OF THE CITY CLERK
LaVonne M. Harldess, MMC
June 13, 2007
MC Old Newport, LLC
2431 W. Coast Highway #205
Newport Beach, CA 92663
Subject: Construction of Off -Site Public Improvements; Orange Avenue
from Old Newport Boulevard to Clay Street (C- 3757).
To Whom It May Concern:
On June 12, 2007, 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 and Labor and Materials
Bonds.
The Surety for the contract is Developers Surety & Indemnity Company, and the
bond numbers are 838037 -S. Enclosed are the Faithful Performance and Labor
and Materials Bonds.
,Sincerely,
LaVonne M. Harkless, MMC
City Clerk
cc: Public Works Department
Fong Tse, P.E., Civil Engineer
encls.
3300 Newport Bbulevard • Post Office Box 1768 • Newport Beach, Callfon- la 92658 -8915
Telephone: (949) 644 -3005 • Fax: (949) 644 -3039 • www.city.newport- beach.ca.us
Bond No. 838037 -S
• CITY OF NEWPORT BEACH Premium: $ 1,430-
SUBDIVISION FAITHFUL PERFORMANCE BOND
WHEREAS, the City Council of the City of Newport Beach, County of Orange, State of California, and MC Old
Newport. LLC , 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 December 10th , 2005.,4 and identified
as Agreement for Construction of Improvements (Orange Avenue Vacation /Street Improvements), 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 Developers. Surety & II$t�i �iR$$�$Yace of business is
Irvine , a corporation organized and doing business under and by virtue of the laws of the State of Iowa , 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 Sixty-Five Thousand Dollars ($65,000.00), 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, 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
December 10-.:.2004.
Approved as
as to Form:
City Attorney
F :1Users\PBwlDHoffstadtW,GVSU BD- PER.BN D
•
ALL- PURPOSE ACKNOWLEDGEMENT
State of California
County of Orange
On 12/13/2004 before me, Christina J. Coleman, Notary Public
Date
personally appeared Jay Hurt
Name of 'Signer(s)
® personally known to me - OR - ❑
CHRISTINA J. COLEMAN
Commission If 1460746
Notary Public • California_
Orange County
MyComm.E>�tesJari 18.2708
proved to me on the basis of satisfactory evidence
to be the person(s) whose Camels.) 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) meted,
executed the instrument.
hand and offa;cial seal.
Though the data below is not required by law, it may prove Valuable to persons relying . on the .document and could prevent
fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER
❑ INDIVIDUAL
❑ CORPORATE OFFICER
TITLE (S)
❑ PARTNERS(S) ❑ LIMITED
❑ GENERAL
OATTORNEY -IN —FACT
❑ TRUSTEE (S)
❑ GUARDIAN /CONSERVATOR
❑ OTHER:
SIGNER IS REPRESENTING:
NAME. OF PERSONS) OR ENTITY(IES)
DESCRIPTION OF ATTACHED DOCUMENT
TITLE OR TYPE OF DOCUMENT
NUMBER OF PAGES
DATE OF DOCUMENT
SIGNER,(S). OTHER THAN NAMED ABOVE,
0 0
POWER OF ATTORNEY FOR
DEVELOPERS SURETY AND INDEMNITY COMPANY
INDEMNITY COMPANY OF CALIFORNIA
PO BOX 19725• IRVINE. CA 92623 • (949) 263 -3300
KNOW ALL.MEN BY THESE PRESENTS, that except as expressly limited, DEVELOPERS SURETY AND INDEMNITY COMPANY and INDEMNITY COMPANY
OF CALIFORNIA, do each, hereby make, constitute and appoint:
** *Barbara A. Burns, )ay Hurt, Kristen Kang, jointly or severally * **
as their Irue and lawful AOomey(s) -in -Fact, to make, execute, deliver and acknowledge, for and on behalf of said corporations, as sureties, bonds, undertakings and contracts
of suretyship giving and gmnling unto said Auorney(s) -in -Fact full power and authority to do and to perform every act necessary, requisite or proper to be done in
connection therewith as each of said corporations could do, but reserving to each of said corporations full power of substitution and revocation. and all of the acts of said -
Attorney(s) -in -Fact, pursuant to These presents, are hereby ratified and confirmed.
This Power of Attorney is granted and is signed by facsimile under and by authority of the following resolutions adopted by the respective Board of Directors of
DEVELOPERS SURETY AND INDEMNITY COMPANY and INDEMNITY COMPANY OF CALIFORNIA, effective as of November 1, 2DW:
RESOLVED, That the Chairman of the Board, the President and any Vice President of the corporation be, and that each of them hereby is, authorized to execute
Powers of Attorney, qualifying the attorneys) named in the Powers of Attorney to execute, on behalf of the corporations, bonds, undertakings and contracts of suretyship:
and that the Secretary or any Assisla m Secretary of the corporations be, and each of them hereby is, authorized to attest the execution of any such Power of Attorney:
RESOLVED. FURTHER, that the signatures of such officers may be affixed to any such Power of Attorney or to any cenificale relating thereto by facsimile, and
any such Power of Attorney or certificate bearing such facsimile signatures shall be valid and binding upon the corporation when so affixed and in the future with respect to
any bond, undertaking or conlrad of suretyship to which it is attached.
IN WITNESS WHEREOF, DEVELOPERS SURETY AND INDEMNITY COMPANY and INDEMNITY COMPANY OF CALIFORNIA have s6crally caused these
presents to be signed by their respective Exeemive Vice President and attesled by their respective Secretary Ibis 8" day of January. 2002.
By. AND f,
f, ryy
ANTONIO ALVARADO
David H. Rhodes. Vice President ?'yJ¢r` VIPOR4 f Fy cz
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Notary Public - California
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By:
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Waller A. Crowell, Secretary = •,,,ado ••.�Y!,p.••'��aDr°'
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STATE OF CALIFORNIA )
)SS.
COUNTY OF ORANGE )
On January R, 2002, before me, Antonio Alvarado- personally appeared David H. Rhodes and Walter A. Crowell, personally known to me for proved to me on
The basis of satisfactory evidence) to be the persons whose names are subscribed to the within instrument and acknowledged to rrte that they executed the same in their
authorized capacities, and that by their signatures on the instrument the entity upon behalf of which the mrsans tided. executed the instrument.
WITNESS my hand and official seal.
CERTIFICATE
The undersigned, as Chief Operating Officer of DEVELOPERS SURETY AND INDEMNITY COMPANY and INDEMNITY COMPANY OF CALIFORNIA,
does hereby certify that the foregoing Power of Attorney remains in full force and has not been revoked, and furthermore, that the provisions of The resolutions of the
respective Boards of Directors of said corporations set forth in the Power of Attorney, are in force as of the date of this Certificate.
This Certificate is executed in the City of Irvine, California, the l-' rh day of D mh r , 2004
B
Y
David G. Lane, Chief Operating Officer
ID -1380 (01/02)
ANTONIO ALVARADO
p
COMM. B 1300303
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Notary Public - California
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♦
ORANGE COUNTY
.�
- My Comm. Expires APRIL 10, 2005
The undersigned, as Chief Operating Officer of DEVELOPERS SURETY AND INDEMNITY COMPANY and INDEMNITY COMPANY OF CALIFORNIA,
does hereby certify that the foregoing Power of Attorney remains in full force and has not been revoked, and furthermore, that the provisions of The resolutions of the
respective Boards of Directors of said corporations set forth in the Power of Attorney, are in force as of the date of this Certificate.
This Certificate is executed in the City of Irvine, California, the l-' rh day of D mh r , 2004
B
Y
David G. Lane, Chief Operating Officer
ID -1380 (01/02)
• •
TH'E
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DISCLOSURE RIDER
Terrorism Risk Insurance Act of 2002
The Terrorism Risk Insurance Act of 2002 created a three -year program
under which the Federal Government will share in the payment of covered losses .
caused by certain events of international terrorism. The Act requires that we
notify you of certain components of the Act, and the effect, if any, the Act will
have on the premium charged for this bond.
Under this program, the Federal Government will cover 90% of the
amount of covered losses caused by certified acts of terrorism, as defined by the
Act. The coverage is available only when aggregate losses resulting from a
certified act of terrorism exceed $5,000,000.00. Insurance carriers must also meet
a variable deductible established by the Act. The Act also establishes a cap of
$1,000,000,000.00 for which the Federal Government or an insurer can be
responsible.
Participation in the program is mandatory for specified lines of property
and casualty insurance, including surety insurance. The Act does not, however,
create coverage in excess of the amount of the bond, nor does it provide coverage
for any losses that are otherwise excluded by the terms of the bond, or by
operation of law.
No additional premium has been charged for the terrorism coverage
required by the Act.
Developers Surety and Indemnity Company
Indemnity Company of California
17790 Fitch
Irvine, CA 92614
(949) 263 3300
,vaJnscodim.c
CITY OF NEWPORT BEACH •
SUBDIVISION LABOR AND MATERIALS BOND
Bond No.: 838037
Premium: Incl. ir.
in Performance
HEREAtS�,�t� City Council of the City of Newport Beach, County of Orange, State of California, and
MC Old e`:'1'RAilna`ffer 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 December 10th, , 2005,
and identified as Agreement for Construction of Improvements (Orange Avenue Vacation/Street Improvements), 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.
Developers Surety and
NOW, THEREFORE, We the Principal and Indemnity Company, as surety whose place of business is
17780 Pitch, Irvine, GAa corporation organized and doing business under and by virtue of the laws of the
State of T owa , and duty 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
Sixty -Five Thousand Dollars ($65,000.00) 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
terms 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, this instrument has been duty executed by the Principal and Surety above named
on Dec. 10 .200 4.
Approved as to
as to Form:
City Attorney
F:IUsersVOMDHoffstadtW GISUBD- L &M.BND
Surety
e
Atto ey -Jn -Fact Jay Hurt
Company
ALL- PURPOSE ACKNOWLEDGEMENT
State of California
County of Orange
On 12/13/2004 before me, Christina. J. Coleman, Notary Public
Date
personally appeared Jay Hurt
Name of Signer(s)
Zpersonally known to me - OR - ❑
CHRISTINA J. COLEMAN
_ Commission 0 1460746
Notmy Public - Cd1fom1b _
Oronge County
*.Comm. E4oIreSJan 18.2008
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 tome that
he /she /they executed the same in his /her /their
authorized capacitv(i.es), 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.
Though the data below is not required by law, it may prove valuable to persons . relying on the document and .could prevent
:fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER
❑ INDIVIDUAL
❑ CORPORATE OFFICER
TITLE (S)
❑ PARTNERS (S) ❑ LIMITED
El GENERAL
DATTORNEY -IN -FACT
❑ TRUSTEE(S)
❑ GUARDIAN /CONSERVATOR
❑ OTI{ER:
SIGNER IS REPRESENTING:
NAME OF PERSONS) OR ENTITY(IES)
DESCRIPTION OF ATTACHED DOCUMENT
TTTLE OR TYPE. OF DOCUMENT
NUMBER OF PAGES
DATE OF DOCUMENT
SIGNER(.$) OTHF..R THAN NAMED ABOVE
POWER OF ATTORNEY FOR
DEVELOPERS SURETY AND INDEMNITY COMPANY
INDEMNITY COMPANY OF CALIFORNIA
PO BOX 19725, IRVINE, CA 92623 • (949) 263 -3300
KNOW ALL MEN BY THESE PRESENTS, that except as expressly limited. DEVELOPERS SURETY AND INDEMNITY COMPANY and INDEMNITY COMPANY
OF CALIFORNIA, do each, hereby make, constitute and appoint:
** *Barbara A. Burns, Jay Hurt, Kristen Kang, jointly or severally * **
as their true and lawful Auorney(s )-in -Face, to make, execute, deliver and acknowledge, for and on behalf of said corporations, as sureties• bonds. undertakings and contracts
of suretyship giving and granting unto said Arterney(s) -in -Fact full power and authority to do and to perform every act necessary, requisite or pmper to be done in
connection therewith as each of said corporations could do, but reserving to each of said corporations full power of substitution and revocation, and all of the acts of said
Altorney(s) -in -Fact, pursuant to these presents, are hereby ratified and confirmed. '
This Power of Attorney is granted and is signed by facsimile under and by authority of the following resolutions adopted by the respective Board of Directors of
DEVELOPERS SURETY AND INDEMNITY COMPANY and INDEMNITY COMPANY OF CALIFORNIA, effective as of November 1.2001):
RESOLVED, that the Chairman of the Board, the President and a ny Vice President of the corporation be, and that each of them hereby is- authorized to execute
Powers of Attorney, qualifying the allorney(s) named in the Powers of Attorney to execute, on behalf of the corporations, bonds• undertakings and contracts of suretyship:
and that the Secretary or any Assistant Secretary of the corporations be, and each of them hereby is, authorized to attest the execution of any such Power of Attorney:
RESOLVED. FURTHER. that the signatures of such officers may be affixed to any such Power of Attorney or to any certificate relating thereto by facsimile, and
any such Power of Attorney or certificate bearing such facsimile signatures shall be volid and binding upon the corporation when so affixed and in the future with respect to
any bond, undertaking or contract of suretyship to which it is attached.
IN WITNESS WHEREOF. DEVELOPERS SURETY AND INDEMNITY COMPANY and INDEMNITY COMPANY OF CALIFORNIA have severally caused these
presents to be signed by their respective Executive Vice President and attested by their respective Secretary this 8'h day of January, 2002.
Br- fi"AND PANY
t±• „......�tio`I oM po
David H. Rhodes, Executive Vice President ,= JS �gPORgl Fy =x O OgPOgq C
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70 e n c U O
02 1936 :oi w 1967 y
BY: Walter A. Crowell, Secretary �*��,>+�•.�OW P, ✓�a'?D ,, Oy CgUFOP�\P L=
STATE OF CALIFORNIA )
)SS.
COUNTY OF ORANGE )
On January 8. 2002, before me, Antonio Alvarado. personally appeared David H. Rhodes and Walter A. Crowell, personally known to me (or proved to me on
the basis of satisfactory evidence) to be the persons whose names are subscribed to the within inslmment and acknowledged to me that they executed the same in their
authorized capacities, and that by their signatures on the instrument the entity upon behalf of which the nersons acted. executed the inslmment.
WITNESS my hand and official seal,
Signature
CERTIFICATE
ANTONIO ALVARADO
p COMM. d 1300303 f
`2
Notary Public - California 3
5:
ORANGE COUNTY
k+y Comm. Expires APRIL 10, 2005
The undersigned, as Chief Operating Officer of DEVELOPERS SURETY AND INDEMNITY COMPANY and INDEMNITY COMPANY OF CALIFORNIA:
does hereby certify that the foregoing Power of Attorney remains in full force and has not been revoked, and furthermore. that the provisions of the resolutions of the
respective Boards of Directors of said corporations set forth in the Power of Attorney, are in force as of the date of this Certificate.
This Certificate is executed in the City of Irvine, California, the 13 thday of Derambpr 9004
By (a 4. >e—,—
David G. Lane, Chief Operating Officer
ID- 1380 (01/02)
TN'E
_.
T I
DISCLOSURE RIDER
0
Terrorism Risk Insurance Act of 2002
The Terrorism Risk Insurance Act of 2002 created a three -year program
under which the Federal Government will share in the payment of covered losses
caused by certain events of international terrorism. The Act requires that we
notify you of certain components of the Act, and the effect, if any, the Act will
have on the premium charged for this bond.
Under this program, the Federal Government will cover 90% of the
amount of covered losses caused by certified acts of terrorism, as defined by the
Act. The coverage is available only when aggregate losses resulting from a
certified act of terrorism exceed $5,000,000.00. Insurance carriers must also meet
a variable deductible established by the Act. The Act also establishes a cap of
$1,000,000,000.00 for which the Federal Government or an insurer can be
responsible.
Participation in the program is mandatory for specified lines of property
and casualty insurance, including surety insurance. The Act does not, however,
create coverage in excess of the amount of the bond, nor does it provide coverage
for any losses that are otherwise excluded by the terms of the bond, or by
operation of law.
No additional premium has been charged for the terrorism coverage
required by the Act.
Developers Surety and Indemnity Company
Indemnity Company of California
17780 Fitch
Irvine, G 92614
(949) 263 3300
wa Jnscodico.com
•
0
CITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
�X/ /OD , VD-7 Z 3 -1 5�-]
June 12, 2007
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Public Works Department
Fong Tse
949 - 644 -3324 or ftse@city.newport- beach.ca.us
SUBJECT: RELEASE OF SURETY FOR OFF -SITE PUBLIC IMPROVEMENTS
COMPLETED ON ORANGE AVENUE FROM OLD NEWPORT
BOULEVARD TO CLAY STREET
OWNER: MC OLD NEWPORT ROAD, LLC
RECOMMENDATIONS:
Accept the off -site public improvements constructed as conditioned for the vacation
and abandonment of a portion of the Orange Avenue public right -of -way from Old
Newport Boulevard to Clay Street.
• 2. Authorize the City Clerk to release Faithful Performance Bond No. 838037 -S in the
amount of $65,000.00 for the public improvements constructed along Orange
Avenue.
3. Authorize the City Clerk to release Labor and Material Bond No. 838037 -S in the
amount of $65,000.00 for the public improvements constructed along Orange
Avenue, provided no claims have been filed.
DISCUSSION:
On March 23, 2004, the City Council conditionally approved the vacation and
abandonment of the southerly portion of the Orange Avenue public right -of -way from
Old .Newport Boulevard to Clay Street to facilitate the construction of a new medical
office building owned by MC Old Newport Road, LLC (Owner) at 4941496 Old Newport
Boulevard. Said Vacation required Owner to construct new sidewalk, curb and gutter,
curb access ramps, storm drain, and roadway improvements along the length of the
Vacation limits.
On May 22, 2005, the City Council accepted a Faithful Performance Bond and a Labor
and Materials Bond (Nos. 838037 -S), in the amount of $65,000.00 each for the required
off -site public improvements. The off-site public improvements required of Owner have
been inspected and are satisfactory for acceptance. Owner submitted the attached
letter requesting the release of the Bonds.
{• 1
LJ
Release of Surety for Off -Site Public Improvements Completed an Orange Avenue from d!d Newport Boulevard to Clay Street
June 12, 2007
Page 2
ENVIRONMENTAL REVIEW
Provisions of CEQA are not applicable.
Submitted
Pri,gripal Civil Engineer L� PulAc Works Director
Attachments: Surety Release Request Letter from MC Old Newport Road, LLC
Vacation Exhibit
•
•
•
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U
0
MC Old Newport Road, LLC
500 Superior Avenue #120
Newport Beach, CA 92663
May 9, 2007
Public Works Department
PO Box 1768
Newport Beach, CA 92658
Dear Sir or Madam:
•
RECEIVED
MAY 1 4 2001
Public Works Department
City of Newport Beach
I am a 500 /a owner of both MC Old Newport, LLC and Mariners Capital, Inc. along with
M. James Mathisrud, who owns the other 50% of both companies. I am writing on behalf
• of MC Old Newport Road, LLC to request that the City Council release the City of
Newport Beach Subdivision Faithful Performance Bond, No. 838037 -5 held by the City
on 494/496 Old Newport Road. This project was completed in December, 2006. In
preparing this request, we notice that the bond contains a clerical error — listing the name
of the company as MC Old Newport, LLC. The correct name is MC Old Newport Road,
LLC. If you have any questions or require any additional information, please contact me
at 949.999.4112. Thank you for your assistance in this matter.
Regards,
A U/<,
. Olson
Owner
MC Old Newport Road, LLC
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ORANGE
LEGEND:
®PROPOSED $01 WIDE
VACATION AND
ABANDONMENT
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LOCATION MAP
Orange Avenue
Street Right -of -Way Vacation
• i
AGREEMENT
FOR
CONSTRUCTION OF IMPROVEMENTS
(ORANGE AVENUE STREET IMPROVEMENTS)
THIS AGREEMENT, made and entered into this i day of 2005, by and
between MC OLD NEWPORT ROAD LLC whose business address is 2431 West Coast Hwy # 205
Newport Beach, CA 92663, hereinafter referred to as "SUBDIVIDER" 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 develop 494 and 496 Old Newport Boulevard within
the City of N ewport Beach, to be known hereafter as " Subdivision ", p ursuant to p rovisions 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, the SUBDIVIDER requested and CITY vacated a portion of the Orange Avenue
southerly public right -of -way from Old Newport Boulevard to Clay Street; and
WHEREAS, Subdivision has been approved; subject to Subdivision Laws and to certain
requirements and conditions of approval, which are incorporated into t his A greement b y reference
( "Conditions of Approval "); and
WHEREAS, in consideration of Citys approval of the Subdivision and City's agreement to
vacate portions of Orange Avenue, Subdivider has agreed to install and complete, at Subdivider's own
expense, certain street and other public improvement work required by the Conditions of Approval
("the Improvements "). The Improvements include, but are not limited to, the construction by Subdivider
of storm drain, sidewalk, curb and gutter, and roadway pavement within and along the southerly
Orange Avenue public right -of -way from Old Newport Boulevard to Clay Street; and
WHEREAS, the above description of the Improvements is understood to be only a general
description of the Improvements, and complete plans for the construction, installation and completion
of the Improvements ( "the Improvement Plans ") shall be prepared by SUBDIVIDER and approved by
the City Engineer, and
WHEREAS, SUBDIVIDER recognizes that by approval of the Subdivision, CITY has conferred
substantial rights upon SUBDIVIDER, including the right to sell, lease, or finance the Subdivision, and
has taken the final act necessary to develop the Subdivision. As a result, CITY will be damaged to the
extent of the cost of installation of the Improvements by SUBDIVIDER's failure to perform its
obligations under this Agreement, including, but not limited to, SUBDIVIDER'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 of the vacated Orange Avenue right -of -way to the City constitutes
an adequate remedy for default by the SUBDIVIDER 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.
0
0
NOW, THEREFORE, in consideration of their mutual promises, the Parties hereto agree as
follows:
1. SUBDIVIDER agrees to comply with all requirements of the Conditions of
Approval and with the provisions of the Subdivisions Laws.
2. SUBDIVIDER 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 Permit, plus any additional improvements required by the Planning Commission or City
Council. SUBDIVIDER 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 p ublic
improvements, free and clear of all liens and encumbrances. The SUBDIVIDER'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 SUBDIVIDER and CITY. SUBDIVIDER shall also
be responsible for obtaining any p ublic or private easements or authorization to accommodate the
Subdivision.
3. SUBDIVIDER agrees to complete the Improvements within a period of three
(3) months from the date hereof, unless the time is extended by the CITY upon written application of
the SUBDIVIDER. The making of an application for an extension of time by the SUBDIVIDER shall,
upon the granting of the application by the CITY, constitute a waiver by the SUBDIVIDER of all
defenses of [aches, 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.
4. The Improvements shall be completed to the satisfaction of the City Engineer
of CITY, and SUBDIVIDER 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.
5. If SUBDIVIDER 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 SUBDIVIDER in accordance with Section 19.16.170 of the Newport Beach Municipal
Code or call upon the surety for SUBDIVIDER 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. SUBDIVIDER 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
SUBDIVIDER 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 SUBDIVIDER and SUBDIVIDER's surety and all without the necessity of giving any further notice
to the SUBDIVIDER or surety before the CITY performs or arranges for performance of any remaining
work to complete the Improvements, and whether the SUBDIVIDER 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 SUBDIVIDER or surety to cease in order to permit adequate coordination by the CITY for
completing any remaining work and improvements not yet completed.
7. SUBDIVIDER shall at all times guarantee SUBDIVIDER's performance of this
agreement by furnishing to CITY security in the amount of Sixty -Five Thousand Dollars ($65,000.00) to
guarantee the performance of this Agreement. The SUBDIVIDER shall provide security in the amount
of Sixty -Five Thousand Dollars ($65,000.00) to guarantee payment to any contractors, subcontractors,
0 0
and persons fumishing labor, materials and equipment to them for the performance of the work herein
described. Said security shall be in the form of bonds (Bond Nos. 838037 -S).
8. The SUBDIVIDER 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, and removal of debris from 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 SUBDIVIDER to
properly maintain the Improvements, the CITY may do all necessary work required by this paragraph,
the cost thereof being chargeable to the SUBDIVIDER 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 fumishing 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.
10. Neither SUBDIVER nor any of SUBDIVIDER's agents or contractors are or
shall be considered to be agents of the CITY in connection with the performance of SUBDIVIDER's
obligations under this Agreement.
11. Subdivider 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.
12. 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 ads or omissions of
SUBDIVIER, its agents or employees in the performance of this Agreement. SUBDIVIDER 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 SUBDIVIDER, 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.
13. CITY shall not be responsible for the design or construction of the development
or the Improvements pursuant to the approved improvement plans, regardless of any negligent action
or inaction taken by the CITY in approving the plans, unless the particular improvement design was
specifically required by CITY over written objection by SUBDIVIDER 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 SUBDIVIDER shall remain obligated to eliminate
any defect in design or dangerous condition caused by the design or construction defect, however
SUBDIVIDER shall not be responsible for routine maintenance. It is the intent of this section that
SUBDIVIDER 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
0
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.
14. If the SUBDIVIDER 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 attorneys 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 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.
ATTEST:
City Clerk
APPROVED AS TO FORM:
V" I ...........
City Attorney
121
CITY OF NEWPORT BEACH,
a municipal corporation
By:
Mayor
SUBDIVIDER
0
NEWPORT ROAD, LLC
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Exp. 12 -31-05
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A LEGAL DESCRIPTION
CIVIL ENGINEERS - LAND SURVEYORS - PLANNERS
2552W= ROAD, SUrrEE•IRVINE,CA92614 -6236 W.O. No. 1373 - 627 -001 Date 04/12/04
(949)660 -0110 FAX: 660 -0418 En r. B.J.W. Chk'd J.W. Sheet 1 Of 1
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VACATED PORTION OF OLD NEWPORT BLVD.
PER CITY RESOLUTION NO, 99 -54, RECORDED
07/27/99 INST. NO. 19990547291, O.R.
J
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ALDEN & EXHIBIT "B"
ww SSOCIATES SKETCH TO ACCOMPANY
A LEGAL DESCRIPTION
CI VII. ENGINEERS - LAND SURVEYORS- PLANNERS
2552 WHITE ROAD, SUITE B- MVINE, CA 92614 -6236 W.O. No. 1373- 627 -001 Date 04/12/04
(949) 660 -0110 FAX: 660.0418 En r. B.J.W. Chk'd J.W. Sheet 1 Of 1
BY THE CRY COUNCIL
CRY OF NEWPOFIT BEACH
CITY OF NEWPORT BEACH Ft3 2x705
CITY COUNCIL STAFF REPORT PPRO D
Agenda Item No. 6
February 22, 2005
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Public Works Department
Fong Tse
949- 644 -3324
ftse@city.newport-beach.ca.us
SUBJECT: AGREEMENT GUARANTEEING COMPLETION OF OFF -SITE STREET
IMPROVEMENTS ON ORANGE AVENUE FROM OLD NEWPORT
BOULEVARD TO CLAY STREET
DEVELOPER: MC OLD NEWPORT, LLC
RECOMMENDATION:
Approve an Agreement for Construction of Improvements guaranteeing the completion of
off -site street improvements conditioned for the vacation and abandonment of a portion
of the Orange Avenue public right -of -way from Old Newport Boulevard to Clay Street.
DISCUSSION:
On March 23, 2004, the City Council conditionally approved the vacation and
abandonment (Vacation) of the southerly portion of the Orange Avenue public right -of-
way from Old Newport Boulevard to Clay Street. The public improvements required for
the Vacation include the construction of sidewalk, curb and gutter, curb access ramps,
storm drain, and roadway improvements along the length of the Vacation limits.
In order to guarantee completion of the Improvements, the developer has executed an
appropriate agreement and provided an accompanying security in the form of a Faithful
Performance Bond and a Labor and Material Bond (Nos. 838037 -S), in the amount of
$65,000.00 each, which is 100% of the estimated cost of the Improvements.
Environmental Review:
Not Applicable.
Prepar y: Submitted b .
Fong T Std� a G. Badum
Civil Engineer �Publ' Works Director
Attachments: Agreement for Construction of Improvements
Faithful Performance Bond
Labor and Materials Bond
Exhibit
0 •
AGREEMENT
FOR
CONSTRUCTION OF IMPROVEMENTS
(ORANGE AVENUE STREET IMPROVEMENTS)
THIS AGREEMENT, made and entered into this _ day of 2005, by and
between MC OLD NEWPORT ROAD. LLC whose business address is 2431 West Coast Hwy # 205.
Newport Beach, CA 92663, hereinafter referred to as "SUBDIVIDER" 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 develop 494 and 496 Old Newport Boulevard within
the City of N ewport B each, to b e k nown h ereafter a s" Subdivision ", p ursuant to p rovisions 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, the SUBDIVIDER requested and CITY vacated a portion of the Orange Avenue
southerly public right -of -way from Old Newport Boulevard to Clay Street; and
WHEREAS, Subdivision has been approved; subject to Subdivision Laws and to certain
requirements and conditions of approval, which are incorporated into this Agreement by reference
( "Conditions of Approval "); and
WHEREAS, in consideration of City's approval of the Subdivision and City's agreement to
vacate portions of Orange Avenue, Subdivider has agreed to install and complete, at Subdivider's own
expense, certain street and other public improvement work required by the Conditions of Approval
( "the Improvements "). The Improvements include, but are not limited to, the construction by Subdivider
of storm drain, sidewalk, curb and gutter, and roadway pavement within and along the southerly
Orange Avenue public right -of -way from Old Newport Boulevard to Clay Street; and
WHEREAS, the above description of the Improvements is understood to be only a general
description of the Improvements, and complete plans for the construction, installation and completion
of the Improvements ( "the Improvement Plans ") shall be prepared by SUBDIVIDER and approved by
the City Engineer; and
WHEREAS, SUBDIVIDER recognizes that by approval of the Subdivision, CITY has conferred
substantial rights upon SUBDIVIDER, including the right to sell, lease, or finance the Subdivision, and
has taken the final act necessary to develop the Subdivision. As a result, CITY will be damaged to the
extent of the cost of installation of the Improvements by SUBDIVIDER's failure to perform its
obligations under this Agreement, including, but not limited to, SUBDIVIDER'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 of the vacated Orange Avenue right -of -way to the City constitutes
an adequate remedy for default by the SUBDIVIDER 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.
• i
NOW, THEREFORE, in consideration of their mutual promises, the Parties hereto agree as
follows:
1. SUBDIVIDER agrees to comply with all requirements of the Conditions of
Approval and with the provisions of the Subdivisions Laws.
2. SUBDIVIDER 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 Permit, plus any additional improvements required by the Planning Commission or City
Council. SUBDIVIDER 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 p ublic
improvements, free and clear of all liens and encumbrances. The SUBDIVIDER'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 SUBDIVIDER and CITY. SUBDIVIDER shall also
be responsible for obtaining a ny p ublic or private easements or authorization to accommodate the
Subdivision.
3. SUBDIVIDER agrees to complete the Improvements within a period of three
(3) months from the date hereof, unless the time is extended by the CITY upon written application of
the SUBDIVIDER. The making of an application for an extension of time by the SUBDIVIDER shall,
upon the granting of the application by the CITY, constitute a waiver by the SUBDIVIDER of all
defenses of [aches, 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.
4. The Improvements shall be completed to the satisfaction of the City Engineer
of CITY, and SUBDIVIDER 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.
5. If SUBDIVIDER 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 SUBDIVIDER in accordance with Section 19.16.170 of the Newport Beach Municipal
Code or call upon the surety for SUBDIVIDER 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. SUBDIVIDER 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
SUBDIVIDER 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 SUBDIVIDER and SUBDIVIDER 's surety and all without the necessity of giving any further notice
to the SUBDIVIDER or surety before the CITY performs or arranges for performance of any remaining
work to complete the Improvements, and whether the SUBDIVIDER 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 SUBDIVIDER or surety to cease in order to permit adequate coordination by the CITY for
completing any remaining work and improvements not yet completed.
7. SUBDIVIDER shall at all times guarantee SUBDIVIDER's performance of this
agreement by furnishing to CITY security in the amount of Sixty -Five Thousand Dollars ($65,000.00) to
guarantee the performance of this Agreement. The SUBDIVIDER shall provide security in the amount
of Sixty -Five Thousand Dollars ($65,000.00) to guarantee payment to any contractors, subcontractors,
0 0
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 (Bond Nos. 838037 -S).
8. The SUBDIVIDER 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, and removal of debris from 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 SUBDIVIDER to
properly maintain the Improvements, the CITY may do all necessary work required by this paragraph,
the cost thereof being chargeable to the SUBDIVIDER 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 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 SUBDIVER nor any of SUBDIVIDER's agents or contractors are or
shall be considered to be agents of the CITY in connection with the performance of SUBDIVIDER's
obligations under this Agreement.
11. Subdivider 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.
12. 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
SUBDIVIER, its agents or employees in the performance of this Agreement. SUBDIVIDER 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 SUBDIVIDER, 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.
13. CITY shall not be responsible for the design or construction of the development
or the Improvements pursuant to the approved improvement plans, regardless of any negligent action
or inaction taken by the CITY in approving the plans, unless the particular improvement design was
specifically required by CITY over written objection by SUBDIVIDER 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 SUBDIVIDER shall remain obligated to eliminate
any defect in design or dangerous condition caused by the design or construction defect, however
SUBDIVIDER shall not be responsible for routine maintenance. It is the intent of this section that
SUBDIVIDER 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.
14. If the SUBDIVIDER 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 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.
ATTEST:
1* City Clerk
APPROVED AS TO FORM:
VL- I ...........
City A orney
CITY OF NEWPORT BEACH,
a municipal corporation
By:
Mayor
411:11]►ll!72
1 10
By:
is ames Mathisrud
M LD NEWPORT ROAD, LLC
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W & EXHIBIT C
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A LEGAL DESCRIPTION
CIVIL. ENGINEERS - LAND SURVEYORS - PLANNERS
2552 WHITE ROAD, SMEB•IRVINE,CA92614 -6236 W.O. No. 1373 - 627 -001 Date 04/12/04
(949) 660 -0110 FAX: 660-0418 En r. B.J.W. Chk'd J.W. Sheet 1 Of 1
0
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Exp. 12 -31 -05
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VACATED PORTION OF OLD NEWPORT BLVD.
PER CITY RESOLUTION NO. 99 -54, RECORDED
07/27/99 INST. NO. 19990547291, O.R.
2
ALDEN & EXHIBIT "B"
SSOCIATES SKETCH TO ACCOMPANY
A LEGAL DESCRIPTION
CIVIL ENGINEERS - LAND SURVEYORS - PLANNERS
2552 R'$ITE ROAD, SUITEB -IRVINE, CA 926146236 W.O. No. 1373- 627 -001 Date 04/12/04
(949) 660 -0110 FAX: 660 -0418 Enar. B.J.W. Chk'd J.W. Sheet 1 Of 1
0 . Bond No. 838037 -5
CITY OF NEWPORT BEACH Premium: $ 1,430.
SUBDIVISION FAITHFUL PERFORMANCE BOND
WHEREAS, the City Council of the City of Newport Beach, County of Orange, State of California, and wr
Newyort . LLC , hereinafter designated as "Principal," are about to or have entered into an agreement pursu
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 December 10th , 2005 "4 and identified
as Agreement for Construction of Improvements (Orange Avenue Vacation/Street Improvements), is hereby referred to and
made a part hereof (the "Agreement"); and
WHEREAS, Principal is required under the tenns of the Agreement to furnish a bond for the faithful performance of
the Agreement,
NOW, THEREFORE, We the Principal and Developers Surety & i °U ' affMace of business is
Irvine , a corporation organized and doing business under and by virtue of the laws of the State of Iowa , 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 Sixty -Five Thousand Dollars ($65,000.00), 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, 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 cos
and reasonable expenses and fees, included reasonable attorneys 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 spec cations.
IN WITNESS WHEREOF, this instrument has been duly executed by the Principal and Surety above named on
December 10: 1.2004.
Approved asto. ffc ncy:
—Public c�A�ector
Ap oved as to Form:
City Attorney
F: \U sers5PB1MDHoffstadt%GtSUe D -PER. BND
By MC Old New Dort. LL
P incipal
By
rincipal
De e o ers Surety and Indemnity Company
Sure
By
Attp "rne' -In -Fact - Say Hurt
0 0
O- PURPOSE ACKNOWLEDGEMENT
State of California
County of Orange
On 12/13/2004 before me, Christina J. Coleman, Notary Public
Date
personally appeared Jay Hurt
Name of Signer(s)
® personally known to me - OR - ❑
J CHMS11 I COLEMAN
_] Comrnlsslon to 1460746 Z
.� Notory Public • COlifOfnla g_
Orange County
My Comm. E�Ires lan 18.2008
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.
hand
seal.
Though the data below is not required by law, it may prove valuable to persons rely'_ng on the document and could prevent
fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER
❑ INDIVIDUAL
❑ CORPOP -kTE OFFICER
❑ PARTNERS(S) ❑ LIMITED
❑ GENERAL
DATTORNEY -IN -FACT
❑ TRUSTEE(S)
❑ GUARDIAN /CONSERVATOR
❑ OTHER:
SIGNER IS REPRESENTING:
NAME OF PERSON(S) OR ENTITY(IES)
0
DESCRIPTION OF ATTACHED DOCUMENT
TITLE OR TYPE OF DOCUMENT
NUMBER OF PAGES
DATE OF DOCUMENT
SIGNER(S) OTHER THAN NAMED ABOVE
0 9
POWER OF ATTORNEY FOR
DEVELOPERS SURETY AND INDEMNITY COMPANY
INDEMNITY COMPANY OF CALIFORNIA
PO BOX 19725, IRVINE. CA 92623' (949) 263 -3300
KNOW ALL MEN BY THESE PRESENTS, that except as expressly limited, DEVELOPERS SURETY AND INDEMNITY COMPANY and INDEMNITY COMPANY
OF CALIFORNIA, do each, hereby make, constitute and appoint:
** *Barbara A. Burns, Jay Hurt, Kristen Kang, jointly or severally * **
as their true and lawful Attorney(s) -in -Fact, to make, execute, deliver and acknowledge, for and on behalf of said corporations, as sureties, bonds, undertakings and contracts
of suretyship giving and granting unto said Attomey(s) -in -Fan full power and authority to do and to perform every act necessary, requisite or proper to be done in
connection therewith as each of said corporations could do, but reserving to each of said corporations full power of substitution and revocation, and all of the acts of said
Atiomey(s) -in -Fact, pursuant to these presents, are hereby ratified and confirmed.
This Power of Attomey is granted and is signed by facsimile under and by authority of the following resolutions adopted by the respective Board of Directors of
DEVELOPERS SURETY AND INDEMNITY COMPANY and INDEMNITY COMPANY OF CALIFORNIA, effective as of November 1, 2000:
RESOLVED, that the Chairman of the Board, the President and any Vice President of the corporation be, and that each of them hereby is, authorized to execute
Pacers of Attorney, qualifying the anorney(s) named in the Powers of Attorney to execute, on behalf of the corporations, bonds, undertakings and contracts of suretyship:
and that the Secretary or any Assistant Secretary of the corporations be, and each of them hereby is, authorized to attest the execution of any such Power of Attorney;
RESOLVED, FURTHER, that the signatures of such officers may be affixed to any such Power of Attorney or to any certificate relating thereto by facsimile, and
any such Power of Attorney or certificate bearing such facsimile signatures shall be valid and binding upon the corporation when so affixed and in the future with respect to
anv bond. undertaking or contract of suretyship to which it is attached.
IN WITNESS WHEREOF. DEVELOPERS SURETY AND INDEMNITY COMPANY and INDEMNITY COMPANY OF CALIFORNIA have severally caused these
presents to be signed by their respective Executive Vice President and
anested by their respective Secretary this 8i' day of January. 2002.
By:
:�.�y AND ,�N "•
' yy'=
MP ANY F
David H. Rhodes, Executive Vice President
A'49
yA"4oµPORgJF;!c
OCT.
-u" 19 rn
ACr�OPkpo T
T
867`02
w
b
1936
Walter A. Crowell. Secretary
'e, dp *d
<IF01s
STATE OF CALIFORNIA
)SS.
COUNTYOFORANGE )
On January 8, 2002, before me. Antonio Alvarado, personally appeared.David H. Rhodes and Walter A. Crowell, personally known to me (or proved to me on
the basis of satisfactory evidence) to be the persons whose names are subscribed to the within instrument and acknowledged to me that they executed the same in their
authorized capacities, and that by their signatures on the instrument the entity upon behalf of which the nersons acted. executed the instrument.
WITNESS my hand and official sea].
Signature �/'� °"
CERTIFICATE
ANTONIO ALVARADO
p COMM. # 1300303
r{
g Notary Public - California
.
t ORANGECOUNTY
My Comm. Expires APRIL 10, 2006
The undersigned, as Chief Operating Officer of DEVELOPERS SURETY AND INDEMNITY COMPANY and INDEMNITY COMPANY OF CALIFORNIA.
does hereby certify that the foregoing Power of Attorney remains in full force and has not been revoked, and furthermore, that the provisions of the resolutions of the
respective Boards of Directors of said corporations set forth in the Power of Attorney, are in force as of the date of this Certificate.
This Certificate is executed in the City of Irvine, California, the I Ith day of P rpmhpr 9004
David G. Lane, Chief Operating Officer
ID- 1380(01/02)
IrISM51co
cg i
DISCLOSURE RIDER
Terrorism Risk Insurance Act of 2002
The Terrorism Risk Insurance Act of 2002 created a three -year program
under which the Federal Government will share in the payment of covered losses
caused by certain events of international terrorism. The Act requires that we
notify you of certain components of the Act, and the effect, if any, the Act will
have on the premium charged for this bond.
Under this program, the Federal Government will cover 90% of the
amount of covered losses caused by certified acts of terrorism, as defined by the
Act. The coverage is available only when aggregate losses resulting from a
certified act of terrorism exceed $5,000,000.00. Insurance carriers must also meet
a variable deductible established by the Act. The Act also establishes a cap of
$1,000,000,000.00 for which the Federal Government or an insurer can be
responsible.
Participation in the program is mandatory for specified lines of property
and casualty insurance, including surety insurance. The Act does not, however,
create coverage in excess of the amount of the bond, nor does it provide coverage
for any losses that are otherwise excluded by the terms of the bond, or by
operation of law.
No additional premium has been charged for the terrorism coverage
required by the Act.
. Developers Surety and Indemnity Company
Indemnity Company of California
17780 Fitch
Irvine, CA 92614
(949) 263 3300
w ,Anscodico.com
• CITY OF NEWPORT BEACH • Bond No.: 838037-
SUBDIVISION LABOR AND MATERIALS BOND Premium: Incl, i
in Performanc
New REAS„ t)tp City Council of the City of Newport Beach, County of Orange, State of California,
MC Old pR �eina` {er designated as "Principal," are about to or have entered into an agreement pursuant to mW
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 December 10th, , 2005,
and identified as Agreement for Construction of Improvements (Orange Avenue Vacation /Street Improvements), 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.
Developers Surety and
NOW, THEREFORE, We the Principal and Indemnity Company , as surety whose place of business is
17780 Fitch, Irvine, qAa corporation organized and doing business under and by virtue of the laws of the
State of Towa , 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
Sixty -Five Thousand Dollars ($65,000.00) for equipment and materials fumished 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 person*
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 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, this instrument has been duly executed by the Principal and Surety above named
on Dec, 10 .200 4.
Approved as to
as to Form:
City Attorney
F ;%Uses PaMOHoffstadtlAMSUBD- L &M.BND
1 \ ' m
Surely
Attovrsiey ,Pn -Fact Jay Hurt)
Company
0
0 0
O— PURPOSE ACKNOWLEDGEMENT
State of California
County of Orange
On 12/13/2004 before me, Christina J. Coleman, Notary Public
Date
personally appeared Jay Hurt
Name of Signer(s)
® personally known to me - OR - ❑
CH14S11NA J. COLEMAN
_ ComrniWon N 1460746 zz
-� Notary Pubk - CWlfomlo S
Orange County
MyCormi.60*0on 18, 2008
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 mvN hand and official seal.
Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent
fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER
❑ INDIVIDUAL
❑ CORPORATE OFFICER
❑ PARTNERS(S) ❑ LIMITED
❑ GENERAL
EIATTORNEY -IN -FACT
❑ TRUSTEE (S)
❑ GUARDIAN /CONSERVATOR
❑ OTHER:
SIGNER IS REPRESENTING:
NAME OF PERSONS) OR ENTITY(IES)
0
DESCRIPTION OF ATTACHED DOCUMENT
TITLE OR TYPE OF DOCUMENT
NUMBER OF PAGES
DATE OF DOCUMENT
SIGNER(S) OTHER THAN NAMED ABOVE
POWER OF ATTORNEY FOR
DEVELOPERS SURETY AND INDEMNITY COMPANY
INDEMNITY COMPANY OF CALIFORNIA
PO BOX 19725. IRVINE, CA 92623 • (949) 263 -3300 .
KNOW ALL MEN BY THESE PRESENTS, that except as expressly limited. DEVELOPERS SURETY AND INDEMNITY COMPANY and INDEMNITY COMPANY
OF CALIFORNIA, do each, hereby make, constitute and appoint:
** *Barbara A. Burns, Jay Hurt, Kristen Kang, jointly or severally * **
as their true and lawful Attorneys) -in -Fact, to make, execute, deliver and acknowledge, for and on behalf of said corporations, as sureties, bonds, undertakings and contracts
of suretyship giving and granting unto said Attomey(s) -in -Fact full power and authority to do and to perform every act necessary, requisite or proper to be done in
connection therewith as each of said corporations could do, but reserving to each of said corporations full power of substitution and revocation- and all of the acts of said
Attorney(s )-in -Fact, pursuant to these presents, are hereby ratified and confirmed.
This Power of Attorney is granted and is signed by facsimile under and by authority of the following resolutions adopted by the respective Board of Directors of
DEVELOPERS SURETY AND INDEMNITY COMPANY and INDEMNITY COMPANY OF CALIFORNIA, effective as of November 1.2000:
RESOLVED, that the Chairman of the Board, the President and any Vice President of the corporation be, and that ench of them hereby is. authorized to execute
Powers of Attorney, qualifying the attorney(s) named in the Powers of Attorney to execute, on behalf of the corporations, bonds, undertakings and contracts of suretyship;
and that the Secretary or any Assistant Secretary of the corporations be, and each of them hereby is, authorized to attest the execution of any such Power of Attomey;
RESOLVED, FURTHER. that the signatures of such officers may be affixed to any such Power of Attorney or to any certificate relating thereto by facsimile, and
any such Power of Attorney or certificate bearing such facsimile signatures shall be valid and binding upon the corporation when so affixed and in the future with respect to
any bond, undertaking or comract of suretyship to which it is attached.
IN WITNESS WHEREOF, DEVELOPERS SURETY AND INDEMNITY COMPANY and INDEMNITY COMPANY OF CALIFORNIA have severally caused these
presents to be signed by their respective Executive Vice President and anested by their respective Secretary this 8'h day of January. 2002.
By' �.tv..AND ,iNOF. Oy(,PANYOF .
David H. Rhodes, Executive Vice President ;yJ.,40appgRT�yy: �60OpPORq� T
OCT. 5 Ro T
aa? 70 :nc O
By 1 9 3 6 ,;D ,; w�
C, 1967 4 2
Walter A.Crowell, Secretary E9vs`•,, /OW A,,; +ad ,,+ 9( /FOp�\ 'a
,.......
STATE OF CA LIFOR NIA )
)SS.
COUNTY OF ORANGE )
On January 8, 2002. before me, Antonio Alvarado, personally appeared David H. Rhodes and Walter A. Crowell, personally known to me (or proved to me on
the basis of satisfactory evidence) to be the persons whose names are subscribed to the within instrument and acknowledged to me that they executed the same in their
authorized capacities, and that by their signatures on the instrument the entity upon behalf of which the me sr ns acted. executed the instrument.
WITNESS my hand and official seal. _ ANTONIO ALVARADO
p COMM. # 1300303 �L
�i Notary Public - California C
Si:namre r ���^' ORANGE COUNTY f
My Comm. Expires APRIL 10, 2005
CERTIFICATE
The undersigned, as Chief Operating Officer of DEVELOPERS SURETY AND INDEMNITY COMPANY and INDEMNITY COMPANY OF CALIFORNIA, -
does hereby certify that the foregoing Power of Attorney remains in full force and has not been revoked, and furthermore, that the provisions of the resolutions of the
respective Boards of Directors of said corporations set forth in the Power of Attorney, are in force as of the date of this Certificate.
This Certificate is executed in the City of Irvine, California, the 13 thday of nprpmhpr 9004
By
David O. Lane, Chief Operating Officer
ID- 1380 (01/02)
TH E
e_.., .
GROUP
DISCLOSURE RIDER
Terrorism Risk Insurance Act of 2002
The Terrorism Risk Insurance Act of 2002 created a three -year program
under which the Federal Government will share in the payment of covered losses
caused by certain events of international terrorism. The Act requires that we
notify you of certain components of the Act, and the effect, if any, the Act will
have on the premium charged for this bond.
Under this program, the Federal Government will cover 90% of the
amount of covered losses caused by certified acts of terrorism, as defined by the
Act. The coverage is available only when aggregate losses resulting from a
certified act of terrorism exceed $5,000,000.00. Insurance carriers must also meet
a variable deductible established by the Act. The Act also establishes a cap of
$1,000,000,000.00 for which the Federal Government or an insurer can be
responsible.
Participation in the program is mandatory for specified lines of property
and casualty insurance, including surety insurance. The Act does not, however,
create coverage in excess of the amount of the bond, nor does it provide coverage
for any losses that are otherwise excluded by the terms of the bond, or by
operation of law.
No additional premium has been charged for the terrorism coverage
required by the Act.
Developers surety and Indemnity Company
Indemnity Company of California
17780 Fitch
Irvine, G 92614
(949) 263 3300
a .inscodico.cotn