HomeMy WebLinkAboutC-3980 - Encroachment Agreement EPN N2003-0087 for 22894 Newport Coast DrCITY OF NEWPORT BEACH
OFFICE OF THE CITY CLERK
LaVonne M Harkless, MMC
July 31, 2007
Mr. Gene Ong
Director, Development Management
Marriott's Newport Coast Villas
Marriott Vacation Club International
3130 South Harbor Boulevard, Suite 500
Santa Ana, CA 92704
Subject: Marriott's Newport Coast Villas
Encroachment Permit #N2003-0087
Dear Mr. Ong:
The Faithful Performance and Labor and Materials Bonds are being released
since the work to repair the ramp at the acceleration lane has been completed for
property located at 22894 Newport Coast Drive in Newport Coast.
The Surety for the contract is Liberty Mutual Insurance Company, and the bond
numbers are 017-009-704. Enclosed are the Faithful Performance and Labor and
Materials Bonds.
SincFely,
• VGIaMi
it IVonne4,4.�ess M C
11 City Clerk
cc: Public Works Department
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
Bond No. 017-009-704
•
CITY OF NEWPORT BEACH
• ENC HMENT PERMIT FAITHFUL. PERFORMCE BOND
WHEREAS, the City Council of the City of Newport Beach, •County of Orange. State of California, and
Marriott Ownership Resorts, Inc., 10400 Fernwood Road, Bethesda, MD 20817
hereinafter designated as 'Principal, are about to or have entered into an agreement pursuant to the
Newport Beach Municipal Code whereby Principal agrees to install and complete certain designated public
improvements as required by conditions of approval to Permit No. N2003-0087 which said agreement, dated June 24 ,
200 z and identified as Agreement for Construction of Improvements (Encroachment Permit No. N2003-0087 ) is
hereby referred to and made a part hereof (the "Agreement"); and
WHEREAS, Principal is required under the tams of the Agreement to furnish a bond for the faithful
performance of the Agreement
Liberty Mutual
NOW, THEREFORE, we the Principal and Insurance Company , as surety, whose place of business is
Boston, MA , a corporation organized and doing business under and by virtue of the laws of the State of
r e 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 Twenty Seven Thousand Dollars ($27,000.00), 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 prodded, on his or their part, to
be kept and performed at the time and in the manner therein specified. and in all respects according to their true Intent
and meaning, and shall indemnify and save harmless City, its officers, agents, and employees. as therein stipulated,
then this obligation strati 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 attomey'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 sane snail 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 April 9 , 200 3.
Approved as to Sufficiency:
Approved as to Form.
City Attomey
FWSFR3ODBVAm1 O A6dMO1QZPERENDA00
By
Liberty Mutual Insurance Company
Erin M. Mullican, ney-in-Fact
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LIBERTY' MUTUAL INSURANCE COMPANY
BOSTON,MASSACHUSETTS _
POWER OF ATTORNEY
KNOW ALL PERSONS BY: THESE PRESENTS:'•_. That Liberty:>Mutuel insurance Company'(the "Company), a' Massachusetts stock insurance
company, pursuant to and by. authority othhe By-law end Authorization hereinafter set forth, does hereby name, constitute and appoint -
TMAOTHY A. SCHILLING, ANDREW G, CASSIDY, LYNNE W. COOK, ERIN M. INULLICAN, LORI LEE SHERWOOD, ALL OF THE
This Rawer -of Attorney. limits the acts of,
the extent -herein stated. -
he Company -except In'the manner and to
1166705
each indiyiduallyti there be-more-ihan one named; _its true and -}awful attorney!in fact itti.frieke, exettrte;,-seal adtfiewledge and. deliver, for and -on ds _
behalf as surety and as Is act an6 deed, ansand all undertakkfgs; :bonds recogntzans-and other surety -cbhgatmnns in the penal sum net exceeding _
- FIFTY MILLION AND ooistrot,ff ,,*,,,,tin,”*.*. : ceDOLLARS ($ i i)ffil irutr.p0 • : ) each, andfhe
_execution of such undertakings, bonds, recognizance acid, other surety oblgations in puce rsuen'of these presents;`shall be as binding upon the
Company as if they had beenduly signedibythepresidentandatfested by the"secretaryottee: Company:in their ownptpper persons. •- -
That this power is made and:executed pursuant to and by authority of the following by-laieind Authorzation
ARTICLE XIII - Execution of Contracts: Section 5 Surety;8onds anrl-Undertakmgs
Any officer of the:Company-authorized for that purpose. in writing by the charrtnan or the..pre'sideht and subieot to such•timitatioons as the
chairman or the, president may prescribe, shall appointsuch attorneys -in -fact, as may beinecessaryto act inbehalf of the. Company to make,
execute, seal; -acknowledge and deliver"as surety. any and all. undertakings, bonds, recognizances and.: ether surety.obligations. Such - -1
attomeys-in-fact, subject to theaimitations set lorth in their respective powers of attorney, shalt have full- power to bind the Company by their -y
signature and execution of any such msirurnems andleattach thereto the seal of the Company.: -When so -executed such instruments shall be ai
as binding as 1 signed by the president and attested by the secretary: - "a
-By the following instrument the chairman or the president has authorized .the officer or otherl otficianamed thereln to a
_appoint attorneys -in -fact;. -
C
Pursuant to Article XII1, Section 5-of the By -Laws, Timothy C.-Mulby, Assistant Secretary of: Liberty Mutual Insurance Cornpany, is hereby m
authorized to appoint such_attorneys-in-fact as may be necessary to act in behalf et the Company to make,:exeoute, seal, acknowledge and _ c
deliver as surety any and all undertakings, bonds, recognizances and other surety_ obligations.:_• - co
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That the By-law and the Authorization set forth above are true copies thereof and are. now in hill force and.effect. - --
EE
IN WITNESS WHEREOF;this Power of Attorney has been subscribed by an authorized' officer or official of the company and the corporate seal of p._a
Liberty Mutual Insurance Companyhas been affixed. thereto in Plymouth Meeting, Pennsylvania this 4th _- day of February ' _ - Q 0
to
LIBERTY MUTUAL INSURANCE COMPANY - - - m C
3to
of
By` w C Qco
Tinto CL. . Mu istant Se tary - . G
COMMONWEALTH OF PENNSYLVANIA ss - L c.
COUNTY OF. MONTGOMERY - -. - . - O CO
On this 4th - day of Februarv.2003 before -me, a:Notary-Public, personally came Timothy C. Mullov- to" me known and acknowledged $
that he is an Assistant Secretary of Liberty Mutual .Insurance Company; that he knows the seal of said corporation; and that he; executed the above E G
Power of Attorney and affixed the corporate seal of Liberty Mutual Insurance Company thereto with the authority and at the direction of said corporation. -11) 12
1N TESTIMONY WH 4'f unto subscribed my name and affixed my notarial seal et Plymouth Meeting. Pennsylvania, ion the day and year .tom. .0fast above written. 4N wt: ! c.
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CERTIFICATE.
Tare asiercs txb Pa6
Piy µh NP dxpntg[ ne Y 06.1c.ty
My Corrrrtar. u-xpirps
niher, Penisyl ania As o v N.o.¢ ,s
I, the undersigned, Aosistantb&r aryotLiberty tyltitoaryisbranCe:Company -do herebycerttty thatthe original power -of attorneyof"whrch the.foregaing: _ -
Isa.full, true and correct copy, is iMiall.tOroarand effeet oryibiedale of this certificate andl:do furthercertity that the.:Officer or official who. executed the
said power et attorney is an: Assistant•Secretary specially authorized by the:ehalrman or the: president to'appoint attorneys -in fact as provided in Article
XIII, Section 5 of the By-laws of Liberty Mutual Insurance Compafiy.
This certificate and the above power of attorney may be signed' by facsimile or mechanically reproduced signatures under and: by authority of the
following vote of the board of directors of Liberty Mutual Insurance Company al a meeting duly called and held on the 12th day of March, 1980. - -
VOTED that -the facsimile -or mechanically' reproduced signature of any assistant secretary_ of the company, wherever appearing -upon -a
certified copy of any power of attorney issued by KS company in connection with surety bonds, shall be valid and -binding upon thecompany
with the same force and effect as though manually affixed. • - ..
IN TESTIMONY
April
By
Jo . X. Hee, Assistant Secretary
NOTICE FROM SURETY REQUIRED BY
TERRORISM. RISK INSURANCE ACT OF 2002
In accordance with the Terrorism Risk insurance Act of 2002 (referred to
hereinafter as the "Act'), this disclosure notice is provided for surety bonds on
which one. or more of the following companies is the issuing surety: Liberty
Mutual Insurance Company; Liberty Mutual Fire . Insurance Company; LM
Insurance Corporation; The First Liberty Insurance Corporation; Liberty
Insurance Corporation; Employers Insurance Company of Wausau (formerly
"EMPLOYERS INSURANCE OF WAUSAU A Mutual Company"); Peerless
Insurance Company; and any other company that is a part of or added to the
Liberty Mutual Group for which surety business is underwritten by Liberty Bond
Services (referred to collectively hereinafter as the "Issuing Sureties").
NOTICE FORMS PART OF BOND
This notice forms part of surety bonds issued by any one or more of the Issuing
Sureties.
DISCLOSURE OF PREMIUM
The premium attributable to any bond coverage for "acts of terrorism" as defined
in Section 102(1) of the Act is Zero Dollars ($0.00).
DISCLOSURE OF FEDERAL PARTICIPATION
IN PAYMENT OF TERRORISM LOSSES
The United States will reimburse the Issuing Sureties for ninety percent (90%)'of
any covered losses from terrorist acts certified under the Act exceeding the
applicable surety deductible.
LMIC-6539 2/03
Bvd .NO. 017-009-704
CITY OF NEWPORT BEACH
FNCROACHMFNT PFRMIT I AROR AND MATFRIAI S Romp .
WHEREAS, the City Council of the City of Newport Beach, County of Orange, State of California, and -
Marriott Ownership Resorts, Inc. hereinafter designated as "Principal." are about to or have entered
into an agreement pursuant to the Conditions of Approval to Encroachment Permit No. N2003-0087 whereby
Principal agrees to install and complete certain designated public Improvements, which said agreement dated
June 24 200 2, and identified as Agreement for Construction of Improvements (Encroachment Permit No N2003-0087
N2003-0087 ), is hereby referred to end made a part hereof (the "Agreement"); and
WHEREAS, under the terms of the Agreement Principal is required; before entering upon the
performance of the work, to file a good and sufficient payment bond with the City of Newport Beach to secure
and guarantee payment to any contractors, subcontractors and persons fumishkmg labor, materials and
equipment for the performance of the Agreement.
Liberty Mutual
NOW, THEREFORE, we the Principal and Insurance Company as surety whose place of business Is
Boston, MA a corporation organized and doing business under and by virtue of the laws of the
State of MA and duly licensed by the State of California for the purpose of making, guaranteeing, or
becoming sole surety tenon bonds or undertakings required or authorized by the laws of the State of California,
are held firmly bound unto the City of Newport Beach and all contractors, subcontractors, laborers.
materialmen, and other persons employed in the performance of the Agreement in the penal sum of
Twenty Seven Tbrtpwil Dollars ($ 27,000.00) for equipment and materials furnished or Tabor thereon of any kind, or for
amounts due under the Unemployment Insurance Act wlh respect to such work or Tabor, 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, casts and reasonable expenses and fees, including
reasonable attomey'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 Tide 15 (con nierdng with Section 3082) of
Part 4 of Division 3 of the Civil Code, so as to give a right of action to then 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 shalt 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 April 9 200 3
Approved as to Sufficiency:
Mayor
Approved as to Form:
City Attorney
P.WSERf PBWUDHolstodMGEM-LaMBNO.doc
Marriott Ownership Resorts, Inc.
By
Liberty Mutualy Insurance Company
Erin M. Mullican,'3Ct�ortfey-in-Fact
This Powerb(Attamey limits the. acts oft named herein, and they: have no authority to
the extent hereto stated.-
LIBERTY MUTUAL- INSURANCE COMPANY
• BOSTON, MASSACHUSETrS
POWER.OF ATTORNEY..-
he Company exceptin the manner and to
1166706
KNOW ALL PERSONS BY THESE PRESENTS That Liberty MutualinsuranceCompany (the "Company'); a Massachusetts stock insurance
company,: pursuant to and by authority of the By-law and Authorization hereinafter set forth,:does hereby name, constitute andappoint -- -
TIMOTHY A. SCHILLING, ANDREW G. CASSIDY, LYNNE W. COOK, ERIN.M. MIJLLICAN, LORI LEE SHERWOOD,-ALL OF THE
CITY OF ROCKVILLE,STATE OF MARYLAND
each individually if there be more Ibamone named; ifs iniejnittaliikt attorney m fact to)Hake execufe seal acknowledge and deliver, for_ and on Ita±--- -
behalf as surety and as its act and`deed, anyantl•all undertakings, bonds recognizances:and other surettyy abkgatirans in the penal sum not exceeding -_
'FIFTY MILLION AND DOLLmitsic$ ) eacli and the
-execution of such undertakings bonds,. reccgnizances and other surety obfgatrons . in:_{fursuance-of-these Rresents shad be _as binding .upon the
:Companyas if they had been duly signet) by the presidentand attested by thesecretaryof the Company in their own Proper: persons- 1
.. That this power is made and executed pursuant to and by authority of the following By-law avid Autherfiation
ARTICLE XIII --Execution of Ci niraets: Section 5. SuretyBonds aS Undertakings.::. ` -
'Any officer of the. Company authorized for that purpose m writing by the chaxnian or the presdelit,and--subject to such limitations as the
chairman or the president may prescribe, shall appoint. such attorneys in -fact, -as may be. necessary to act in behalf of the Company to make,
execute, seal, acknowledge:and deliver:: as Surety :any and all. -undertakings, -bonds, recognizances and other surety obligations. Such
attorneys -In -fact, subject to the limitations set forth in their respective, powers of attorney, shall have full power to bind the Company by their
a signature and execution of any such ileatilimenta and to attach thereto the seal of the Company: When so executed Such instruments shall be. i - -®
as binding as if signed by the president and -attested by the secretary.
y.
•
11; By the following Instrument the chairman or the president has authorized the officer or other official namedtherein to appoint attorneys -In -fact: _--
2 E Pursuant to Article XIII, Section 5 of the By -Laws, Timothy C. Mulloy, Assistant Secretary of. Liberty Mutual Insurance Company, is hereby
40 J.- - - authorized to appoint such attorneys -in -fact: as may benecessaryto act in behalf of the Company to make, execute, seal, acknowledge and -_ C
3 .= . - deliver as surety any and all undertakings; bonds, recognizances and other surety -obligations. - a 53
al-
w 1-. That the -By-law and the Authorization set forth above are true copies thereof and are now in full. force and effect. - - W
IN WITNESS WHEREOF, this Power of Attorney has been subscribed by. an authorized officer or official of the Company and the corporateseal of
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li Liberty Mutual Insurance Company has been affixed thereto in Plymouth Meeting, Pennsylvania this. 4th day of - February- t o
2003 Qty
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COMMONWEALTH OF PENNSYLVANIA ss--- - " - - .t.-9:
COUNTY OF-- MONTGOMERY - - - - '� to
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LIBERTY MUTUAL INSURANCE COMPANY
By C.
Tinto C.-Mu ssistant Sectary
On thus 4th day of - February 2003:before me, a Notary Public, personally came Timothy C. Mulloy to me known, and acknowledged =' a¢¢tru
that he is an Assistant Secretary of Liberty Mutual Insurance Company; that he knows the seal of said corporation; and that he executed -the above v-F-
Power of Attorney and affixed thecorporate seal of liberty Mutual Insurance Company thereto with the authority and at: the direction of said corporation ->:2
IN TESTIMONY WH
first above written:
• .CERTIFICATE o-`
1, the undersigned, Assistant-becretaryof Liberty Mutuallnsurance Company do he ebycertify that the original poweriof attorney 0! which the foregoing:
is a full, true and correct copy, is m fult force and effect on the:date of this certriicate and11;oo further certify that theofficer or official who executed the
Said power of attomey is an Assistant Secretary specially et:00 lied by the' Chairman orime.:giesidentifo appoint attorneys -in -fact as provided in Article
XIII, Section 5 of the By-laws of Liberty Mutuailnsurance Company:; :*
This certificate and the above power of attorney may be signed by facsimfle or mechanically reproduced signatures under and by authorityofthe
following vote of the board of directors of Liberty Mutual insurance Company at -a meeting: duly called and heldon the-t2th day of March, 1980. -_ -
VOTED that the facsimile or mechanically reproduced -signature of anyassistant secretary of the company wherever appearing upon a
certified copy of any power of attorney issued: by -the company in connection with surety bonds, shall be valid -and binding upon the company
withthesame force and effect as though manually. affixed. - - - - - - IN TESTIMONY WHEREOF; I have hereunto subscribed my name and affixed the corporate seal of the said company this - 9th day of -
April - - 2003 - - - - - -
unto subscribed my name and affixed my notarial seal at Plymouth Meeting; Pennsylvania on the day and year .c
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- - 'cry P.ublic.: ..
' - Bo .-X. Hee, Assistant Secretary
NOTICE FROM SURETY REQUIRED BY
TERRORISM. RISK INSURANCE ACT OF 2002
In accordance with the Terrorism Risk Insurance Act of 2002 (referred to
hereinafter as the "Act"), this disclosure notice is provided for surety bonds on
which one or more of the following companies is the issuing surety: Liberty
Mutual Insurance Company; Liberty Mutual Fire Insurance Company; LM
Insurance Corporation; The First Liberty .Insurance Corporation; Liberty
Insurance Corporation; Employers Insurance Company of Wausau (formerly
"EMPLOYERS INSURANCE OF WAUSAU A Mutual Company"); Peerless
Insurance Company; and any other company that is a part of or added to the
Liberty Mutual Group for which surety business is underwritten by Liberty Bond
Services (referred to collectively hereinafter as the "Issuing Sureties").
NOTICE FORMS PART OF BOND
This notice forms part of surety bonds issued by any one or more of the Issuing
Sureties.
DISCLOSURE OF PREMIUM
The premium attributable to any bond coverage for "acts of terrorism" as defined
in Section 102(1) of the Act is Zero Dollars ($0.00).
DISCLOSURE OF FEDERAL PARTICIPATION
IN PAYMENT OF TERRORISM LOSSES
The United States will reimburse the Issuing Sureties for ninety percent (90%) of
any covered losses from terrorist acts certified under the Act exceeding the
applicable surety deductible.
LMIC-6539 2/03
Amnon.
Western Regional Office
3130 South Harbor Boulevard
Suite 500
Santa Ana, CA 92704
714/662-2344
714/662-2351 Fax
OWNERSHIP RESORTS
July 23, 2007
Mr. Rodi Almendralo
City of Newport Beach
Public Works Department
3300 Newport Blvd.
Newport Beach, CA 92663
Re: Marriott's Newport Coast Villas
Encroachment Permit #N2003-0087
Dear Mr. Almendralo:
I am requesting the release of the Performance Bond and Labor and Material Bond for the
above referenced project and Encroachment Permit number. The work to repair the ramp at the
acceleration lane has been completed.
Should you have any additional questions, please do not hesitate to contact me at (714) 662-
4707.
Sincerely,
Marriott Ownership Resorts, Inc.
Gene 0
Directof'6evelopment Management
Marriott's Newport Coast Villas
Marriott Vacation Club International
cc: Jim Sinnema, RBF
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follows:
AGREEMENT
FOR
CONSTRUCTION OF IMPROVEMENTS
(ENCROACHMENT PERMIT NO. C 31(
THIS AGREEMENT, made and entered into this uo day of L l tyr°J , 2005, by and
between Th-r'c:kitCAA,o(N \ USO 11n4rron-kcila_1 whose business address is
OZ694 IAAtuQo»r( o45*brave men -,eft 6,-„ c1„ 12kg24_05, , and if an individual, whose
residence address is Kr 1er
hereinafter referred to as "PERMITTEE" and the CITY OF NEWPORT BEACH, a municipal
corporation, organized and existing under and by virtue of its Charter and the Constitution and the laws
of the State of Califomia, hereinafter referred to as "CITY";
WITNESSETH:
WHEREAS, PERMITTEE has applied for an encroachment permit for the use and/or
development of land within the City of Newport Beach to be known as Encroachment Permit No,2003
(cam-1(hereinafter "Permit") pursuant to provisions of the CITY's ordinances and regulations; and
WHEREAS, Permit has been approved, subject to certain requirements and conditions of
approval, which are incorporated into this Agreement by reference ('Permit Conditions"); and
WHEREAS, in consideration of approval of the Permit by the CITY and in compliance with the
conditions of approval, PERMITTEE desires to enter into this Agreement, whereby PERMITTEE
promises to install and complete, at PERMITTEE'S own expense, street and other public improvement
work required by CITY in connection with the proposed development, (the "Improvements") which
Improvements, without limitation by enumeration consists of: t\-bV
rt t flOoe PccaaAmory g OfJ IJ r- GP St' l
ADD TRA FFtC SIA N pi jrAr V M S ON NauTher coNGT
T7W vc / M flo aLNc C S(.
The above description of items is understood to be only a general description of the Improvements,
and not a binding description. PERMITTEE has secured this Agreement by improvement security
required by City Ordinance; and
WHEREAS, complete plans for the construction, installation and completion of the
Improvements shall be prepared by PERMITTEE and approved by the City Engineer, (the
"Improvement Plans"). All references in this Agreement to the Improvement Plans shall include
reference to any specifications for the Improvements as approved by the City Engineer, and
WHEREAS, PERMITTEE recognizes that by approval of the Permit CITY has conferred
substantial rights upon PERMITTEE. As a result, CITY will be damaged to the extent of the cost of
installation of the Improvements by PERMITTEE's failure to perform its obligations under this
Agreement, including, but not limited to, PERMITTEE's obligation to commence construction of the
Improvements by the time established in this Agreement. CITY shall be entitled to all remedies
available to it pursuant to this Agreement and law ; and
NOW, THEREFORE, in consideration of their mutual promises, the Parties hereto agree as
1. PERMITTEE agrees to comply with all requirements of the Conditions of
Approval.
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2. PERMITTEE agrees to complete all Improvements in accordance with
Improvement Plans approved by the City Engineer, including all improvements required by the
Municipal Code which were not specifically waived by the Planning Commission or City Council
approving the Permit, plus any additional improvements required by the Planning Commission or City
Council as a condition of approving the Permit. PERMITTEE shall acquire and dedicate, or pay the
cost of acquisition by CITY, of all rights -of -way, easements and other interests in real property for
construction or installation of the public improvements, free and clear of all liens and encumbrances.
The PERMITTEE's obligations with regard to acquisition by CITY of offsite rights -of -way, easements
and other interests in real property shall be subject to a separate agreement between PERMITTEE
and CITY. PERMITTEE shall also be responsible for obtaining any public or private drainage
easements or authorization to accommodate the development.
3. PERMITTEE agrees to complete the Improvements within a period of t..e
months from the date hereof, unless the time is extended by the CITY upon written application of the
PERMITTEE. It is understood that by providing security for this Agreement, the surety consents in
advance to any extension of time as may be given by the CITY to the PERMITTEE and waives notices
of such extension. The making of an application for an extension of time by the PERMITTEE shall,
upon the granting of the application by the CITY, constitute a waiver by the PERMITTEE and by the
surety of all defenses of !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 PERMITTEE shall pay the costs of inspection of the work in accordance with the
established schedule of charges for inspection heretofore adopted and on file in the office of the City
Engineer.
5. If PERMITTEE shall fail to complete the Improvements within the period set
out above, or fails to reimburse the CITY for the cost of inspection, CITY may resort to any security
deposited by PERMITTEE or call upon the surety for PERMITTEE to pay for the Improvements or to
supply the money for the completion of the Improvements in accordance with this Agreement and the
provisions of the Newport Beach Municipal Code. PERMITTEE shall also be responsible for the
Improvements and the cost thereof.
6. It is further understood and agreed that upon default of any obligation
hereunder, and at any time any such default, the CITY may make written demand upon the
PERMITTEE or surety or both to immediately remedy the default or complete the work. If the remedial
activities or completion of work are not commenced within seven (7) days after such demand is made
and are not thereafter diligently prosecuted to completion and fully completed within thirty (30) days
after the making of such demand (or such other time as may be contained in said demand), the CITY
may then complete or arrange for completion of all remaining work or conduct such remedial activity as
in the sole judgment of the CITY may be required, all at the full expense and obligation of the
PERMITTEE and PERMITTEE's surety and all without the necessity of giving any further notice to the
PERMITTEE or surety before the CITY performs or arranges for performance of any remaining work to
complete the Improvements, and whether the PERMITTEE or surety have constructed any of the
required Improvements at the time. In the event the CITY elects to complete or arrange for completion
of remaining work and improvements the City Engineer, upon such election, may require all work by
the PERMITTEE or surety to cease in order to permit adequate coordination by the CITY for
completing any remaining work and improvements not yet completed.
7. PERMITTEE shall at all times guarantee PERMITTEEs performance of this
agreement by fumishing to CITY security in the amount of'*iC '{tven 4ta`� ollars ($)-1 DC�7 i
to guarantee the'performance oQf this Agreement. The PERi411TTEE shall provide security in the
amount of-1jot 5tvan.Lhwn1011ars ($a -I Gta) -to guarantee payment to any contractors,
subcontractors, aed persons furnishing labor, materials and equipment to them for the performance of
the work herein described. Said security shall be in the form of 6ory-i (Bond
Nos./Certificate of Deposit No's. 01-1— c i-1 0 4- ).
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8. The PERMITTEE promises and agrees to maintain all of the Improvements to
be constructed under this Agreement in a state of good repair, until all of the work and Improvements
are completed and accepted by or on behalf of the CITY and until the security for the performance of
this Agreement is released. Maintenance of the Improvements shall include, but shall not be limited to,
repair of pavement, curbs, gutters, sidewalks, parkways, sewers, and removal of debris from sewers
and storm drains; and shall also include, but not be limited to by this enumeration, sweeping, repairing
and maintaining in good and safe condition all streets and street improvements. Upon failure of the
PERMITTEE to properly maintain the Improvements, the CITY may do all necessary work required by
this paragraph, the cost thereof being chargeable to the PERMITTEE and his surety under this
Agreement.
9. The securities required by this Agreement shall be released as follows:
a. Security given for faithful performance of any act, obligation, work or
agreement shall be released upon the final completion and acceptance of the act or work.
b. Security given to secure payment to the contractors, his or her
subcontractors and to persons 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 PERMITTEE nor any of PERMITTEE's agents or contractors are or
shall be considered to be agents of the CITY in connection with the performance of PERMITTEE's
obligations under this Agreement
11. Indemnity/Hold Harmless. CITY or any officer or employee thereof shall not be
liable for any injury to persons or property occasioned by reason of the acts or omissions of
PERMITTEE, its agents or employees in the performance of this Agreement. PERMITTEE further
agrees to protect, defend, indemnify and hold harmless CITY, its officials and employees from any and
all claims,demands, causes of action, liability or loss of any sort, because of, or arising out of, the
negligent or intentional acts or omissions of PERMITTEE, its agents or employees in the performance
of this Agreement, including all claims, demands, causes of action, liability, or loss because of, or
arising out of, in whole or in part, the design or construction of the Improvements. This indemnification
and agreement to hold harmless shall extend to injuries to persons and damages or taking of property
resulting from the design or construction of said development, and the public improvements as
provided herein, and in addition, to adjacent property owners as a consequence of the diversion of
waters from the design or construction of public drainage systems, streets and other public
improvements. Acceptance by the CITY of the Improvements shall not constitute an assumption by the
CITY of any responsibility for any damage or taking covered by this paragraph.
12. CITY shall not be responsible for the design or construction of the development
or the Improvements pursuant to the approved improvement plans or map, regardless of any negligent
action or inaction taken by the CITY in approving the plans or map, unless the particular improvement
design was specifically required by CITY over written objection by PERMITTEE submitted to the City
Engineer before approval of the particular improvement design, which objection indicated that the
particular improvement design was dangerous or defective and suggested an altemative safe and
feasible design. After acceptance of the Improvements, the PERMITTEE shall remain obligated to
eliminate any defect in .design or dangerous condition caused by the design or construction defect,
however PERMITTEE shall not be responsible for routine maintenance. It is the intent of this section
that PERMITTEE shall be responsible for all liability for design and construction of the Improvements
installed or work done pursuant to this Agreement and that CITY shall not be liable for any negligence,
nonfeasance, misfeasance and malfeasance in approving, reviewing, checking, or correcting any
plans or specifications or in approving, reviewing or inspecting any work or construction. The
improvement security shall not be required to cover the provisions of this paragraph.
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13. If the PERMITTEE and the surety fail to install all or any part of the
Improvements required by this Agreement within the time set forth herein, or fail to comply with any
other obligation contained herein, they shall be jointly and severally liable to the CITY for any
administrative expenses and attomey's fees and costs incurred in obtaining compliance with this
Agreement and any such expenses and fees incurred in processing any action for damages or for any
other remedies permitted by law.
IN WITNESS WHEREOF, PERMITTEE has executed this Agreement and the CITY OF
NEWPORT BEACH has caused its corporate name and seal to be affixed by its Mayor and City Clerk
thereunto duly authorized as of the day and year first above written.
APPROVED AS TO FORM:
F: WSERS\PBWIDHofstadMG1EP-AGT.doc
CITY OF NEWPORT BEACH,
a municipal corporation
/Public Works Director
PERMITTEE
By
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