Loading...
HomeMy WebLinkAboutC-9530-1 - Temporary License Agreement for Temporary Use of City Property (4201 Uptown Newport Drive)TEMPORARY LICENSE AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH AND PARKHOUSE RESIDENCES, LLC FOR TEMPORARY USE OF CITY PROPERTY THIS TEMPORARY LICENSE AGREEMENT FOR USE OF CITY PROPERTY ("License Agreement") is made and entered into as of this G* day of rA rA ►ze-1-1 074, 20231("Effective Date"), by and between the City of Newport Beach, a California municipal corporation and charter city ("City"), and Parkhouse Residences, LLC, a Delaware limited liability company ("Licensee"), and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of the City. B. The City is the owner of that certain real property located at 4201 Uptown Newport Drive situated in the City of Newport Beach, County of Orange, State of California, legally described and depicted in the attached Exhibit "A" ("City Property"), incorporated herein by this reference. C. Licensee is the owner of that certain real property located adjacent to City Property, at 4239 Uptown Newport Drive situated in the City of Newport Beach, County of Orange, State of California ("Licensee's Property"). Licensee is constructing additional improvements on Licensee's Property (the "Work"), as depicted in the attached Exhibit "B" incorporated herein by this reference. D. In order to complete the Project, Licensee requests to use a certain portion of City Property as a temporary construction staging yard for the storage and staging of materials and equipment during the term of the Project (the "License Area") as depicted in the attached Exhibit "C" and incorporated herein by this reference. E. City Council Policy F-7 provides that the City may allow its unused property to generate revenue and as a means to provide otherwise unfeasible uses and facilities to benefit the community. Use of the License Area promotes the City's goals of affordable housing as being developed in the Work, and City would like to allow Licensee to use the License Area and assist Licensee to complete the Work. F. In consideration of the mutual promises and obligations contained in this License, the receipt and sufficiency of which is hereby acknowledged, City hereby grants to Licensee the revocable right to temporarily occupy and use the License Area, and Licensee accepts the same on the following terms and conditions. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. LICENSE City grants a non-exclusive, temporary and revocable license ("License") to Licensee for the term of this License Agreement to use the License Area for temporary construction storage and staging during construction of the Work for a term starting on the Commencement Date, as defined herein, and ending on the expiration or sooner termination of this Agreement. The License Area is approximately one thousand four hundred fifty square feet (1,450 ft2) in size, and shall be bounded by various walls, fences, and gates to differentiate it from the rest of City Property. The License granted herein is subject to the terms, covenants and conditions hereinafter set forth, and Licensee covenants, as a material part of the consideration for this License, to keep and perform each and every term, covenant and condition of this License Agreement. 2. TERM The term of this License shall commence on the Commencement Date, and continue for six (6) consecutive months unless terminated earlier as set forth herein. The "Commencement Date" shall be thirty (30) calendar days after the City receives written notice from Licensee that Licensee is ready to commence the Work. 3. RENEWAL The City Manager may renew this License for two (2) additional six (6) month terms if City finds: (i) that the terms of the License Agreement have been met; (ii) it is determined that the License Area remains necessary for the Work to continue; and (iii) and the use by Licensee is not causing any negative impact on traffic circulation, parking, or surrounding properties and uses. Any renewals approved pursuant to this Section 3 must be in writing and approved as to form by City's Attorney. 4. LICENSE FEE 4.1 Licensee shall pay the City Five Hundred Dollars and 00/100 ($500.00) per month ("License Fee") which amount shall be due and payable on the first of each month (the "Due Date") commencing on the Commencement Date. License Fees for any partial month shall be prorated in accordance with the actual number of days in that month and shall be due on the first day of that month that falls within the Term. 4.2 Annually, upon each successive anniversary date of the Effective Date ("Adjustment Date"), the License Fee shall be adjusted to reflect the increases in the cost of living as indicated by the Consumer Price Index described below. The License Fee may be adjusted if the Consumer Price Index for the Los Angeles — Long Beach — Anaheim Area, All Urban Consumers, All Items ("Index"), as published by the United States Department of Labor, Bureau of Labor Statistics ("Bureau"), increases over the Base Period Index. The initial "Base Period Index" shall be the Index for the calendar month which is four (4) months prior to the month of the Effective Date's annual anniversary. The initial Base Period Index shall be compared with the Index for the same calendar month for each subsequent year ("Comparison Index"). The Comparison Index Parkhouse Residences, LLC Page 2 of 16 used for a given year's adjustment calculation will become the Base Period Index for purposes of the next annual License Fee adjustment calculation. If the Comparison Index is higher than the Base Period Index, then the License Fee for the next year shall be increased by the amount of such percentage change. Should the Bureau discontinue the publication of the above Index, or publish same less frequently, or alter same in some other manner, then the parties shall adopt a substitute Index or substitute procedure which reasonably reflects and monitors consumer prices. In no event shall the License Fee be less than the License Fee in effect immediately prior to the Adjustment Date. 5. PERMITS AND LICENSES Licensee, at its sole expense, shall obtain and maintain during the term of this License Agreement, all appropriate permits, licenses and certificates that may be required by any governmental agency including City. 6. USE OF LICENSE AREA 6.1 Licensee's use of the License Area shall be limited to the terms of this Agreement, and any and all covenants or restrictions now in effect, or which may become applicable to the License Area. Licensee shall only enter upon and use the License Area as of the Commencement Date. 6.2 Licensee may utilize the License Area for the temporary parking of vehicles, equipment and materials, safely stored. 6.3 Storage of construction materials is expressly prohibited outside of the fenced area. 6.4 Licensee agrees to use the License Area only for the activities described herein, and shall not create or construct any improvements to the License Area, use the License Area, or for any other purpose without first obtaining the prior written consent of City, which consent may be withheld in City's sole and absolute discretion. 6.5 Prior to commencing the Work, the Licensed Area shall be temporarily fenced and screened on all sides for the duration of the Work. The height of fence shall be six (6) feet, and fence material shall be chain link metal fence overlaid on the exterior with an opaque vinyl screen, or other equivalent fencing and screening material as approved by the City. 6.6 Licensee shall place legible warning signs on or about the License Area visible to at any public right-of-way in a manner required by federal, state or local law, that includes Licensee's contact information, including a 24-hour emergency phone number; 6.6.1 Licensee shall not commit or permit the commission of any waste or hazardous substances on the License Area. Licensee shall not maintain, commit, or permit any nuisance on the License Area, as defined in the California Civil Code, and shall comply with any and all noise and nuisance requirements as defined by any Parkhouse Residences, LLC Page 3 of 16 applicable federal, state and local laws and regulations. License shall not use or permit the use of the License Area for any unlawful purpose. 6.7 Licensee shall access the License Area through existing entryway(s) and shall not create any other entry or exit to the License Area. 6.8 Licensee shall keep the License Area free from hazards or risk to the public health, safety or welfare. 6.9 Licensee's access to and use of the License Area for any reason, including pre -operational and/or post -operational activities, shall be strictly limited to the hours between 7:00 a.m. and 6:00 p.m. on non -holiday weekdays, or as otherwise authorized by any approved permit or permits issued by City. 6.10 Except as provided under this License Agreement, Licensee shall not make or permit to be made any alterations, additions or improvements to the License Area, or install lighting or equipment, or install any signs, lettering or advertising media of any type or any other visual displays, on or about the License Area without the prior written consent of City. Notwithstanding the foregoing, Licensee shall place all required construction notices and warning signs on or about the License Area in the manner required by Federal, State or local law. 7. MAINTENANCE 7.1 Licensee shall, at its sole cost and expense, maintain the License Area in strict accordance with the terms set forth under this Section, including, but not limited to, the following: 7.1.1 Licensee shall be liable and responsible for the security, protection, repair and maintenance of the License Area for such time as this License is in effect, including Licensee's personal property and equipment. Licensee shall exercise all necessary precautions for opening, closing, and securing the License Area each day. 7.1.2 Licensee shall use care to protect the License Area and restore it to its original condition to the satisfaction of the City when the License Area is not in use by Licensee. 7.1.3 Licensee shall take good care of and keep the License Area neat and clean at all times. Further, Licensee shall be responsible for maintenance of the License Area including, but not limited to, the routine removal of foreign material, waste, and debris. Licensee's obligation to maintain the License Area shall include a regular preventative maintenance program, together with routine repairs caused by normal wear and tear, to be provided by a licensed service company acceptable to City. Licensee shall obtain all required building permits necessary for such repair. Should Licensee fail to commence required maintenance or repairs, or cleaning of the License Area to a condition satisfactory to City, within three (3) business days after receipt of notice to do so, City may perform such work or have such work performed by others and Licensee shall immediately reimburse City for all direct and indirect costs associated with such work Parkhouse Residences, LLC Page 4 of 16 upon receipt of an invoice for such costs. Graffiti shall immediately be called in to the City's Graffiti Hotline for removal. 7.1.4 Licensee shall use care to protect the License Area and restore it to its original condition to the satisfaction of the City when the License Area is not in use by Licensee. 7.2 If any of the Work contemplated under the Agreement is considered a "public work", pursuant to the applicable provisions of the Labor Code of the State of California, including but not limited to Section 1720 et seq., not less than the general prevailing rate of per diem wages including legal holidays and overtime Work for each craft or type of workman shall be paid to all workmen employed on such. In accordance with the California Labor Code (Sections 1770 et seq.), the Director of Industrial Relations has ascertained the general prevailing rate of per diem wages in the locality in which the Work is to be performed for each craft, classification, or type of workman or mechanic needed to execute the Agreement. A copy of said determination is available by calling the prevailing wage hotline number (415) 703-4774, and requesting one from the Department of Industrial Relations. If any of the Work contemplated under this Agreement is considered a "public work" as set forth above, the Contractor is required to obtain the wage determinations from the Department of Industrial Relations and post at the job site the prevailing rate or per diem wages. If any of the Work contemplated under this Agreement is considered a "public work" as set forth above, it shall be the obligation of the Contractor or any subcontractor under him/her to comply with all State of California labor laws, rules and regulations and the parties agree that the City shall not be liable for any violation thereof. 8. EMERGENCY 8.1 Licensee understands the License Area is located on public property and emergency situations may develop from time -to -time that require access to the License Area to be immediately stopped and thereby interfere or temporarily terminate Licensee's use of the License Area. Licensee agrees that, if such a situation occurs, City shall have the right to immediately restrict access to the License Area and any equipment or materials located on the License Area for the duration of the emergency. Licensee agrees not to hold City responsible or liable for and shall protect, defend, indemnify and hold City harmless for any damage, loss, claim or liability of any nature suffered as a result of the loss of the use of the License Area. 8.2 Unless otherwise specifically provided in a notice of termination of this License, City's exercise of the right to restrict access to the License Area is not intended to constitute a termination of this License by either Party and such event is a risk accepted by Licensee. Licensee and City shall meet after the City determines that an emergency situation has ended to establish the time and manner in which access shall be restored. City shall have the right to reasonably determine what constitutes an "emergency situation" pursuant to this Section. Parkhouse Residences, LLC Page 5 of 16 9. ADMINISTRATION This License will be administered by the Community Development Department. The Community Development Director or his/her designee shall be the Project Administrator and shall have the authority to act for City under this License. The Project Administrator or his/her authorized representative shall represent City in all matters pertaining to this License. 10. CITY INSPECTION 10.1 City shall be entitled, at any time, to inspect the License Area for compliance with the terms of this License Agreement, and with all applicable federal, state and local laws and regulations. 10.2 City and its authorized City representative(s) may, without prior notice to Licensee, enter upon and inspect the License Area for any lawful purpose, provided that City shall use commercially reasonable efforts to not interfere with Licensee's operation and/or use of the License Area in performing any such entry, inspection, and/or shared use of the License Area. In case of emergency, City or its authorized City representative(s) may enter the License Area by whatever force reasonably necessary if Licensee is not present to open and permit entry. Any entry to the License Area by City under this License Agreement shall not be construed as a forcible or unlawful entry into, or a detainer of, the License Area, or an eviction of Licensee from the License Area or any portion thereof. Any damage caused to the License Area pursuant to this Section by the City shall be repaired or replaced by the City or City's authorized representative(s) at its sole expense. 11. NO INTEREST IN PROPERTY Nothing herein shall be deemed to create a lease, or easement of any property right, or to grant any, possessory or other interest in the License Area or any public right- of-way, other than a license to use and access the License Area, revocable and for a temporary term as set forth in this License Agreement. 12. RESERVATION OF RIGHTS Licensee understands, acknowledges and agrees that any and all authorizations granted to Licensee under this License Agreement are non-exclusive and shall remain subject to all prior and continuing regulatory and propriety rights and powers of City to regulate, govern and use the License Area, City Property, and other City property, as well as any existing encumbrances, deeds, covenants, restrictions, easements, dedications and other claims of title that may affect the License Area and City property. 13. CITY RETENTION OF RIGHTS Licensee's right to use the License Area during the term of this License Agreement shall be subordinate and junior to the rights of City to use and occupy the License Area and the property for any purpose. Parkhouse Residences, LLC Page 6 of 16 14. TERMINATION OF LICENSE 14.1 Notwithstanding the term of this License, this License may be terminated during the term or any extended term in the following manner: 14.1.1 By Licensee: At any time, upon completion of the Work, and after obtaining consent from the City as to the condition of the License Area; 14.1.2 By City: At any time, without cause upon the giving of thirty (30) calendar days' written notice of termination to Licensee; or 14.1.3 If, after written notice of default to Licensee of any of the terms or conditions of this License, Licensee fails to cure or correct the default within ten (10) business days of receipt of written notice, City may immediately terminate the License. 15. SURRENDER 15.1 At a minimum of fifteen (15) calendar days prior to any expiration or termination of this License Agreement, City and Licensee shall perform a walk-through to inspect the condition of the site and the repaired improvements to discuss any additional corrections or modifications that need to be made prior to the City accepting the License Area upon expiration or termination of this License Agreement ("City's Final Inspection"). 15.2 No later than fifteen (15) calendar days prior to any expiration or termination of this License Agreement, Licensee shall provide City with a property owner's title policy showing the License Area is free and clear of any and all monetary liens and/or encumbrances of any kind effective as of the date of the expiration or termination of the License Agreement. 15.3 LICENSEE, AT ITS SOLE COST AND EXPENSE, SHALL, PRIOR TO THE EXPIRATION OR TERMINATION OF THIS LICENSE AGREEMENT, REMOVE ALL OF ITS EQUIPMENT AND STORED MATERIALS, RESTORE THE LICENSE AREA TO ITS ORIGINAL CONDITION, AND PERFORM ANY OTHER REPAIRS OR RESTORATIONS IDENTIFIED IN CITY'S FINAL INSPECTION. CITY'S RECREATION AND SENIOR SERVICES DEPARTMENT DIRECTOR OR ITS DESIGNEE, A REPRESENTATIVE FROM CITY'S PLANNING DIVISION AND CITY'S BUILDING INSPECTOR SHALL COMPLETE A FINAL WALK THROUGH TO DETERMINE THE LICENSE AREA HAS BEEN RESTORED TO A CONDITION SATISFACTORY TO AND APPROVED BY CITY, AND VACATE THE LICENSE AREA. SHOULD LICENSEE FAIL TO RESTORE THE LICENSE AREA TO A CONDITION SATISFACTORY TO CITY, CITY MAY PERFORM SUCH WORK OR HAVE SUCH WORK PERFORMED BY OTHERS AND LICENSEE SHALL IMMEDIATELY REIMBURSE CITY FOR ALL DIRECT AND INDIRECT COSTS ASSOCIATED WITH SUCH WORK UPON RECEIPT OF AN INVOICE FOR SUCH COSTS. Parkhouse Residences, LLC Page 7 of 16 16. INDEMNITY AND LIABILITY FOR DAMAGES 16.1 Irrespective of any insurance carried by Licensee for the benefit of City, and to the fullest extent permitted by law, Licensee shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers, and employees (collectively, the "Indemnified Parties") from and against any and all claims (including, without limitation, claims for bodily injury, death, loss or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims"), which may arise from or in any manner relate (directly or indirectly) to this License, any work performed or failure to perform or any services provided or failure to provide under this License including, without limitation, defects in workmanship or materials or Licensee's presence or activities conducted that relate in any way to this License (including the negligent and/or willful acts, errors and/or omissions of Licensee, employees, vendors, suppliers, and/or anyone employed directly or indirectly by any of them. 16.2 Notwithstanding the foregoing, nothing herein shall be construed to require Licensee to indemnify the Indemnified Parties from any Claim arising from the sole negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this License. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Licensee. 17. BONDS 17.1 Prior to the commencement of the Work, Licensee shall, at its sole cost and expense, submit to the City for review and approval a Labor and Materials Bond using the form attached hereto as Exhibit "D," and incorporated herein by reference, or in a form acceptable to the City Attorney, in the amount of five hundred thousand dollars ($500,000.00) to be in effect during the construction of the Work. 17.2 Prior to the commencement of the Work, Licensee shall, at its sole cost and expense, submit to the City for review and approval a Faithful Performance Bond using the form attached hereto as Exhibit "E", a letter of credit, or other security ("Security") in the amount of five hundred thousand dollars ($500,000.00), to be effective throughout the Term of this Agreement plus ninety (90) calendar days thereafter, to ensure and secure faithful compliance with the conditions of this Agreement. The Security shall be in a form acceptable to the City Attorney. The purpose of the Security is to provide payment to the City for any and all expenditures incurred by the City under this Agreement, including but not limited to costs of repairs and/or removal of any materials, equipment or other construction items remaining on the License Area upon expiration or termination of this Agreement should Licensee fail to do so as required by this Agreement. The Security shall in no way limit the liability or obligations of Licensee or its insurers under this Agreement. If the funds represented by the Security become exhausted, Licensee shall Parkhouse Residences, LLC Page 8 of 16 immediately provide the City with a new security in the amount necessary to provide full required Security. 18. INSURANCE Without limiting Licensee's indemnification of City, and prior to commencement of work, Licensee shall obtain, provide and maintain at its own expense during the term of this License Agreement, policies of insurance of the type and amounts described in the Insurance Requirements attached hereto as Exhibit "F" and incorporated herein by reference. 19. HAZARDOUS SUBSTANCE 19.1 Hazardous Substance means: (i) any substance, product, waste or other material of any nature whatsoever which is or becomes listed, regulated, or addressed pursuant to the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9601 et seq. ("CERLCA"); the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et seq.; the Resource Conversation and Recovery Act, 42 U.S.C. Section 6901 et seq. "RCRA"); the Toxic Substances Control Act, 15 U.S.C. Section 2601 et seq.; the Clean Water Act, 33 U.S.C. Section 1251 et seq.; the California Hazardous Waste Control Act, Health and Safety Code Section 25100 et seq.; the California Hazardous Substance Account Act, Health and Safety Code Sections 25330 et seq.; the California Safe Drinking Water and Toxic Enforcement Act, Health and Safety Code Sections 25249.5 et seq.; California Health and Safety Code Sections 25280 et seq. (Underground Storage of Hazardous Substances); the California Hazardous Waste of Concern and Public Safety Act, Health and Safety Code Sections 25169.5 et seq.; California Health and Safety Code Sections 25501 et seq. (Hazardous Materials Response Plans and Inventory); or the Porter -Cologne Water Quality Control Act, Water Code Sections 13000 et seq., all as they, from time -to -time may be amended or re - codified, (the above -cited statutes are here collectively referred to as the "Hazardous Substances Laws") or any other Federal, State or local statute, law, ordinance, resolution, code, rule, regulation, order or decree regulating, relating to, or imposing liability or standards of conduct concerning, any hazardous, toxic or dangerous waste, substance or material, as now or at any time hereafter in effect; (ii) any substance, product, waste or other material of any nature whatsoever which may give rise to liability under any of the above statutes or under any statutory or common law theory, including but not limited to negligence, trespass, intentional tort, nuisance, waste or strict liability or under any reported decisions of a state or federal court; (iii) petroleum or crude oil; and (iv) asbestos. 19.2 From the Effective Date and throughout the Term, Licensee shall not use, occupy, or permit any portion of the License Area to be used or occupied in violation of any Hazardous Substance laws. Notwithstanding any other provision in this Section 19, Licensee is not responsible or liable for any Hazardous Substances that are brought on to the License Area, through migration or other means, by third -parties not associated with Licensee. Parkhouse Residences, LLC Page 9 of 16 19.3 Notwithstanding any contrary provision of this Agreement, and in addition to the indemnification duties of Licensee set forth elsewhere in this Agreement, Licensee indemnifies, defends with counsel reasonably acceptable to City, protects, and holds harmless City and its elected and appointed officials, boards and commissions, officers, employees, agents, and volunteers from and against any and all losses, fines, penalties, claims, demands, obligations, actions, causes of action, suits, costs and expenses (including, without limitation, attorneys' fees, disbursements and court costs), damages, judgments, or liabilities, including, but not limited to, any repair, cleanup, detoxification, or preparation and implementation of any remedial, response, closure or other plan of any kind or nature which the City and its elected or appointed officials, boards and commissions, officers, employees, agents or volunteers may sustain or incur, or which may be imposed upon them, in connection with any breach of Licensee's obligations or representations in this Agreement or the use of the License Area under this Agreement, arising from or attributable to the Licensee Parties (defined below) storage or deposit of Hazardous Substances in violation of applicable laws. This section is intended to operate as an agreement pursuant to Section 107(e) of CERCLA, 42 USC Section 9607(e), and California Health and Safety Code Section 25364, to insure, protect, hold harmless, and indemnify City for any claim pursuant to the Hazardous Substance laws or the common law. 19.4 Licensee does not, and shall not, authorize any third party to use, generate, manufacture, maintain, permit, store, or dispose of any Hazardous Substances in violation of applicable laws on, under, about or within the License Area. 19.5 Upon expiration or earlier termination of this Agreement, Licensee shall deliver possession of the License Area in compliance with Hazardous Substance laws subject to the last sentence of Section 19.2 above. 19.6 If during the Term of this Agreement, Licensee becomes aware of (i) any actual or threatened release of any Hazardous Substances on, in, under, from, or about the License Area in violation of Hazardous Substance laws; or (ii) any inquiry, investigation, proceeding, or claim by any government agency or other person regarding the presence of any Hazardous Substances in violation of Hazardous Substance laws on, in, under, from or about the License Area, Licensee shall give City written notice of the release or inquiry within five (5) calendar days after Licensee becomes aware or first has reason to believe there has been a release or inquiry and shall simultaneously furnish to City copies of any claims, notices of violation, reports, warning or other writings received by Licensee that concern the release or inquiry. 19.7 If the presence of any Hazardous Substances brought onto the License Area by Licensee or Licensee's employees, agents, sublessees, licensees, concessionaires, contractors, or invitees ("Licensee Parties"), or generated by same during the Term of this Agreement, results in contamination of the License Area or adjacent properties in violation of Hazardous Substance laws, Licensee shall promptly take all necessary actions, at Licensee's sole expense, to remove or remediate such Hazardous Substances in full compliance with applicable laws. Licensee shall provide notice to City prior to performing any removal or remedial action. Licensee shall not Parkhouse Residences, LLC Page 10 of 16 propose nor agree to any covenant of use restriction as part of any removal or remediation required as a result of this provision without City's written consent. Licensee shall pay any costs City incurs in performing Licensee's obligation to clean-up contamination resulting from Licensee's operations or use of the License Area. 19.8 Should any clean-up of Hazardous Substances for which Licensee is responsible not be completed prior to the expiration or sooner termination of the Agreement, including any extensions thereof, then Licensee shall transfer the amounts required to complete clean-up into an escrow account, together with City -approved instructions for the disbursement of such amount in payment of the costs of any remaining clean-up as it is completed, and (ii) if the nature of the contamination or clean-up required of Licensee is of such a nature as to make the License Area untenable or unleasable, then Licensee shall be liable to City as a holdover lessee until the clean-up has been sufficiently completed to make the License Area suitable for lease to third parties. The estimated cost of the clean-up shall require approval of the City. 19.9 If City determines, in its reasonable discretion, that Licensee does not have insurance or other financial resources sufficient to enable Licensee to fulfill its obligations under this provision, whether or not accrued, liquidated, conditional, or contingent, then Licensee shall, at the request of City, procure and thereafter maintain in full force and effect such environmental impairment liability and/or pollution liability insurance policies and endorsements, or shall otherwise provide such collateral or security reasonably acceptable to City as is appropriate to assure that Licensee will be able to perform its duties and obligations hereunder. 19.10 Licensee's obligations in this Section 19 shall survive the expiration or earlier termination of this Agreement. 20. RELOCATION Licensee agrees that whenever any City improvements may be required (for example, maintenance or repair of the City's property), the City may require the relocation of the Licensee's equipment and materials stored in the License Area at Licensee's expense, without Licensee making any claim against the City for reimbursement or damage therefor. Except in the event of an emergency or other situation requiring immediate relocation of the License Area, City shall provide Licensee with not less than thirty (30) calendar days written notice of relocation specifying a date by which the relocation is to take place. 21. PROHIBITION AGAINST ASSIGNMENT AND TRANSFER ALL OF THE TERMS AND PROVISIONS OF THIS LICENSE AGREEMENT SHALL INURE TO THE BENEFIT OF AND SHALL BE BINDING UPON THE PARTIES AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS. THIS LICENSE AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF LICENSEE IS PERSONAL TO LICENSEE AND SHALL NOT BE ASSIGNED, TRANSFERRED, OR HYPOTHECATED (COLLECTIVELY REFERRED TO AS "TRANSFERRED"), IN Parkhouse Residences, LLC Page 11 of 16 WHOLE OR IN PART, WITHOUT THE PRIOR WRITTEN CONSENT OF THE CITY, WHICH CONSENT MAY BE WITHHELD IN CITY'S SOLE AND ABSOLUTE DISCRETION FOR ANY REASON OR NO REASON AT ALL. ANY ASSIGNMENT OF THIS LICENSE AGREEMENT OR THE LICENSE GRANTED HEREUNDER, VOLUNTARILY OR BY OPERATION OF LAW, SHALL AUTOMATICALLY TERMINATE THIS LICENSE AGREEMENT, UNLESS LICENSEE HAS OBTAINED THE PRIOR WRITTEN CONSENT OF CITY. 22. CONFLICT OF INTEREST The Licensee or its employees may be subject to the provisions of the California Political Reform Act of 1974 ("Act"), which (a) requires such persons to disclose any financial interest that may foreseeably be materially affected by the work performed under this License, and (b) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. If subject to the Act, Licensee shall conform to all requirements of the Act. Notwithstanding Section 9.1.3, failure to conform to the requirements of the Act constitutes a material breach and is grounds for immediate termination of this License by City. Licensee shall indemnify and hold harmless City for any and all claims for damages resulting from Licensee's violation of this Section. 23. NOTICE AND EMERGENCY CONTACT 23.1 All notices, demands, requests or approvals to be given under the terms of this License shall be given in writing, and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first-class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Licensee to City shall be addressed to City at: Attn: Real Property Administrator Community Development Department City of Newport Beach 100 Civic Center Drive Newport Beach, CA, 92658 Phone: 949-644-3236 23.2 All notices, demands, requests or approvals from City to Licensee shall be addressed to Licensee at: Attn: Property Manager 18565 Jamboree Road, Suite 200 Irvine, CA 92612 Phone: 949-417-1396 Fax: 949-417-1399 Parkhouse Residences, LLC Page 12 of 16 Licensee provides the following emergency contact name and number: Attn: Property Manager 18565 Jamboree Road, Suite 200 Irvine, CA 92612 Phone: 949-417-1396 Fax: 949-417-1399 24. STANDARD PROVISIONS 24.1 Compliance with all Laws. Licensee shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all work prepared by Licensee shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator. 24.2 Agency. Neither anything in this License nor any acts of Licensee shall authorize Licensee or any of its employees, agents or contractors to act as agent, contractor, joint venturer or employee of City for any purpose. 24.3 Waiver. A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 24.4 Integrated Agreement. This License Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 24.5 Interpretation. The terms of this License shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the License or any other rule of construction which might otherwise apply. 24.6 Amendments. This License may be modified or amended only by a written document executed by both Licensee and City and approved as to form by the City Attorney. 24.7 Severability. If any term or portion of this License is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this License shall continue in full force and effect. 24.8 Controlling Law and Venue. The laws of the State of California shall govern this License and all matters relating to it and any action brought relating to this License shall be adjudicated in a court of competent jurisdiction in the County of Orange. Parkhouse Residences, LLC Page 13 of 16 24.9 Taxes. Licensee acknowledges that the License granted herein may be subject to possessory interest taxes. Licensee shall have the sole obligation to pay any taxes, fees and assessments, plus applicable penalties and interest, which may be imposed by law and arise out of Licensee's License hereunder. Licensee shall indemnify, defend and hold harmless City against any and all such taxes, fees, penalties or interest assessed, or imposed against City hereunder. 24.10 No Third Party Rights. The Parties do not intend to create rights in or grant remedies to, any third party as a beneficiary of this License, or of any duty, covenant, obligation or undertaking established herein. 24.11 No Attorneys' Fees. In the event of any dispute under the terms of this License the prevailing party shall not be entitled to attorneys' fees. 24.12 Counterparts. This License Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. 25. NO DAMAGES Licensee acknowledges that City would not enter into this License Agreement if, it were to be liable for damages (including, but not limited to, actual damages, economic damages, consequential damages, lost profits, loss of rents or other revenues, loss of business opportunity, loss of goodwill or loss of use) under, or relating to, this License Agreement or any of the matters referred to in this Agreement, including, without limitation, any and all plans, permits, licenses or regulatory approvals, and CEQA documents related to the License Area. Accordingly, Licensee covenants and agrees on behalf of itself and its successors and assigns, not to sue City (either in its capacity as lessor in this Agreement or in its capacity as the City of Newport Beach) for damages (including, but not limited to, actual damages, economic damages, consequential damages, lost profits, loss of rents or other revenues, loss of business opportunity, loss of goodwill or loss of use) or monetary relief for any breach of this License Agreement by City or for any dispute, controversy, or issue between City and Licensee arising out of or connected with this License Agreement or any of the matters referred to in this License Agreement, including, without limitation, any and all plans, permits, licenses or regulatory approvals, CEQA documents, or any future amendments or enactments thereto, the parties agreeing that declaratory relief, injunctive relief, mandate and specific performance shall be Licensee's sole and exclusive judicial remedies. Notwithstanding the foregoing, nothing in this Section 25 shall limit Licensee's remedies as expressly set forth in this Agreement. Parkhouse Residences, LLC Page 14 of 16 26. GOVERNMENT CLAIMS ACT Licensee and City agree that in addition to any claims filing or notice requirements in this Agreement, Licensee shall file any claim that Licensee may have against City in strict conformance with the Government Claims Act (Government Code sections 900 et seq.), or any successor statute. [SIGNATURES ON NEXT PAGE] Parkhouse Residences, LLC Page 15 of 16 IN WITNESS WHEREOF, the parties have caused this License to be executed on the dates written below. APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY Date: ! 3 ai!� By: Aaron arp , 47S City A or y o�3��3 ATTEST: Date: 3� 514 Matedllul City Clerk Attachments Exhibit A Exhibit B Exhibit C Exhibit D Exhibit E Exhibit F CITY OF NEWPORT BEACH, A California municipal corporation Date: I /I t) /?�L r By: !�&, Gra� eung City, nager LICENSEE: PARKHOUSE RESIDENCES, LLC, a Delaware limited liability company Date: Signed in Counterpart By: Brian G. Rupp Executive Vice President — Real Estate [END OF SIGNATURES] Description and Depiction of City Property Depiction of Licensee's Work Depiction of License Area Labor and Materials Bond Faithful Performance Bond Insurance Requirements Parkhouse Residences, LLC Page 16 of 16 IN WITNESS WHEREOF, the parties have caused this License to be executed on the dates written below. APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY Date: ► (�, By: Aaron C. arp U, �1S City Att r ey ATTEST: Date: Bv: Leilani I. Brown City Clerk Attachments: CITY OF NEWPORT BEACH, A California municipal corporation Date: By: Grace K. Leung City Manager LICENSEE: PARKHOUSE RESIDENCES, LLC, a Delaware limited liability company Date: By: e� —1 Brian G. Rupp Executive Vice President — Real Estate [END OF SIGNATURES] Exhibit A: Description and Depiction of City Property Exhibit B: Depiction of Licensee's Work Exhibit C: Depiction of License Area Exhibit D: Labor and Materials Bond Exhibit E: Faithful Performance Bond Exhibit F: Insurance Requirements Parkhouse Residences, LLC Page 16 of 16 Exhibit "A" Description and Depiction of City Property Lot of A of Tract Map No. 17763 in the City of Newport Beach, County of Orange, State of California as shown on a map filed in Book 937, Pages 17 through 23, inclusive, of Miscellaneous Maps, in the office of the Recorder of Orange County, California, as amended by that certain Tract Map Certificate of Correction recorded on February 2, 2016 as Instrument No. 2016000045179 in the Office of the County Recorder. A.P.N. 445-134-18 Parkhouse Residences, LLC Exhibit A-1 ♦ 4 _\ r if �A w N" IS Disclaimer: N EWPORT BEACH Every reasonable effort has been made to assure the accuracy of the data provided, however, The City of agVVPp� Newport Beach and its employees and agents 0 100 200 disclaim any and all responsibility from or relating to e@ any results obtained in its use. u ? Feet EXHIBIT A 10/12/202� Parkhouse Residences, LLC Exhibit A-2 Exhibit "B" Licensee's Work All- OwAille j. Ron " Yh" NB Disclaimer 14 F w C n R T M F A C H0 Every reasonable effort has been made to assure the accuracy of the data provided, however. The City of + p Newport Beach and its employees and agents d U 200 400 disclaim any and all responsibility from or relating to any results obtained in its use. D C�4FORM`� . Feet Q 141=1 Parkhouse Residences, LLC Exhibit B-1 ' n s3 yW vao fx a w Parkhouse Residences, LLC Exhibit B-2 Exhibit "C" License Area License Area 1,450 sq. ft. (10 ft by 145 ff.) y ' � t _ySt n' / '� t Z h P 4 uptown Part; 711 NEWSDlsclalmer. N EWPORT BEACH Every reasonable effort has been made to assure the accuracy of the data provided, however. The City of aEa et Newport Beach and its employees and agents o 0 100 200 discialm any and all responsibility from or relating to any results obtained in its use. Fe G4ron'•�� �n�»romrn Parkhouse Residences, LLC Exhibit C-1 Exhibit "D" Labor and Materials Bond CITY OF NEWPORT BEACH BOND NO. 800126533 LABOR AND MATERIALS BOND WHEREAS, -+Parkhouse Residences, LLC, a Delaware limited liability company, as Licensee of the City of Newport Beach, State of California, has awarded to Parkhouse Residences, LLC, a Delaware limited liability company (hereinafter "Principal,") a contract to. Use of city property located at 4201 Uptown Newport Drive as a temporary construction staging yard for the storage and staging of materials and equipment during the term of the Project located at 4239 Uptown Newport Drive (hereinafter the "Contract"), and which Contract is hereby referred to and made a part hereof; and WHEREAS, it is Principal's responsibility, in strict conformity with the Agreement on file with 1 Parkhouse Residences, LLC, and the office of the City Clerk of the City of Newport Beach, which is incorporated herein by this reference; and WHEREAS, Principal has executed or is about to execute the Contract and the terms thereof require the furnishing of a bond, providing that if Principal or any of Principal's subcontractor or subcontractors, shall fail to pay for any services materials, provisions, equipment or other supplies used in, upon, for, or about the performance of the work agreed to be done, or for any work or labor done thereon of any kind, the Surety on this bond will pay the same to the extent hereinafter set forth. NOW, THEREFORE, We the undersigned Principal, and, Atlantic Specialty Insurance Company duly authorized to transact business under the laws of the State of California, as Surety, (referred to herein as "Surety") are held and firmly bound unto the City of Newport Beach, in the sum of Five Hundred Thousand Dollars and 00/100 ($500,000.00) lawful money of the United States of America for the payment of which sum well and truly to be made, we for which payment well and truly to be made, we bind ourselves, our heirs, executors and administrators, successors or assigns, jointly and severally, firmly by these present. THE CONDITION OF THIS OBLIGATION IS SUCH, that if the Principal or the Principal's heirs, executors and administrators, successors or assigns, of its subcontractor or subcontractors, fail to pay for any services, materials, provisions, or other supplies, implements or machinery used in, upon, for, or about the performance of the work contracted to be done, or for any other work or labor thereon of any kind, or for amounts due under the Unemployment Insurance Code with respect to such work or labor, or for any amounts required to be deducted, withheld and paid over to the Employment Development Department from the wages of employees of the Principal and subcontractors pursuant to Section 13020 of the Unemployment Insurance Code with respect to such work and labor, then the Surety will pay for the same, in an amount not exceeding the sum specified in this Bond, and also, in case suit is brought to enforce the Parkhouse Residences, LLC Exhibit D-1 obligations of this Bond, a reasonable attorneys' fee, to be fixed by the Court as required by the provisions of Section 9554 of the Civil Code of the State of California. The Bond shall inure to the benefit of any and all persons, companies, and corporations entitled to file claims under Section 9100 of the California Civil Code so as to give a right of action to them or their assigns in any suit brought upon this Bond, as required by and in accordance with the provisions of Sections 9500 et seq. of the Civil Code of the State of California. And Surety, for value received, hereby stipulates and agrees that no change, extension of time, alterations or additions to the terms of the Contract or to the work to be performed thereunder or the specifications accompanying the same and no inadvertent overpayment of progress payments shall in any way affect its obligations on this Bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the Contract or to the work or to the specifications or of any inadvertent overpayment of progress payments. In the event that any principal above named executed this Bond as an individual, it is agreed that the death of any such principal shall not exonerate the Surety from its obligations under this Bond. IN WITNESS WHEREOF, this instrument has been duly executed by the above named Principal and Surety, on the 27th _day of April , 2023 Parkhouse Residences, LLC, a Delaware limited liability company Name of Contractor (Principal) Authorized Signature/Title Atlantic Specialty Insurance Company aLu'i ( Name of Surety Authorized Agent Signature 605 Highway 169 North, Suite 500, Plymouth, MN 55441 Address of Surety (952) 852-2431 Telephone APPROVED AS TO FORM: CITY ATTYkNEYf' IC� Date -.- BY: Aaron C. Aarp ms City Attorney "J"ZIz3 Terah Lane, Attorney -In -Fact Print Name and Title NOTARY ACKNOWLEDGMENTS OF CONTRACTOR AND SURETY MUST BE ATTACHED Parkhouse Residences, LLC Exhibit D-2 SEE ATTACHED NOTARY ACKNOWLEDGMENT FOR SURETY ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of Cal' ornia County of 6AAQv1-) } ss. On 20 a3 before me, Notary Public, personally appeared who proved to me on the basis of satisfactory evidence Ito Abe 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 signatures(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing para raph is true and ci.-� TERRI HOVDESfAD Notary Public - California WITNESS my a ■■ Orange County s Commission x 2406769 6", Comm. Expires Jun 28, 2026 ignature (seal) ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of Iss. On 20 before me, Notary Public, personally appeared who 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 signatures(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (seal) Parkhouse Residences, LLC �F Exhibit D-3 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE 1189 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached and not the truthfulness, accuracy, or validity of that document. State of California County of Orange ) On L4 al before me, personally appeared Vanessa Copeland Nanie(s) of Signer(s) Terah Lane Notary Public, who 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 hie/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. -aw do1 10 VA SSA COPELAND i Notary Public - California Orange County �► Commission M 2424393 My Comm. Expires Oct 31, 2026 — Place Notary Seal Above I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITN S ny h n ' 1 and officcal. Signature: Si grat.1 Notary Public ------------- —----- —------ -------- ----------- -- OPTIONAL ------------------------------------------------ Though the information below is not required by law, it may prove valuable to persons relying on the document and could present fraudulent and reattachment of this form to another document. Description of Attached Document Type or Title of Document: Document Date: Signer(s) Other Than Named Above:. Capacity(ies) Claimed by Signer(s) Signer's Name: Terah Lane ❑ Individual ❑ Corporate Officer — Title(s): ❑ Partner: ❑Limited ❑ General X Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: Number of Pages: Capacity(ies) Claimed by Signer(s) Signer's Name: ❑ Individual ❑ Corporate Officer — Title(s): ❑ Partner: ❑Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: Rev. 1-15 intact INSURANCE P o vver of A Gl-or ne@fie KNOW ALL MEN BY THESE PRESENTS, that ATLANTIC SPECIALTY INSURANCE COMPANY, a New York corporation with its principal office in Plymouth, Minnesota, does hereby constitute and appoint: Rachelle Rheault, Mike Parizino, James A. Schaller, Jeri Apodaca, Kim Luu, Heather Saltarelli, Kevin Cathcart, Vanessa Copeland, Teresa Jackson, Terah Lane, Eric Lowey, Mark Richardson, Lisa Pellerito, each individually if there be more than one [aimed, its true and lawful Attorney -in -Fact, to make, execute, seal and deliver, for and on its behalf as surety, any and all bonds, recognizances, contracts of indemnity, and all other writings obligatory in the nature thereof; provided that no bond or undertaking executed under this authority shall exceed in amount the sum of: unlimited and the execution of such bonds, recognizances, contracts of indemnity, and all other writings obligatory in the nature thereof in pursuance of these presents, shall be as binding upon said Company as if they bad been fully signed by an authorized officer of the Company and sealed with the Company seal. This Power of Attorney is made and executed by authority of the following resolutions adopted by the Board of Directors of ATLANTIC SPECIALTY INSURANCE COMPANY on the twenty-fifth day of September, 2012: Resolved: That the President, any Senior Vice President or Vice -President (each an "Authorized Officer") may execute for and in behalf of the Company any and all bonds, recognizances, contracts of indemnity, and all other writings obligatory in the nature thereof, and affix the seal of the Company thereto; and that the Authorized Officer may appoint and authorize an Attorney -in -Fact to execute on behalf of the Company any and all such instruments and to affix the Company seal thereto; and that the Authorized Officer may at any time remove any such Attomey-in-Fact and revoke all power and authority given to any such Attorney -in - Fact. Resolved: That the Attorney -in -Fact may be given full power and authority to execute for and in the name and on behalf of the Company any and all bonds, recognizances, contracts of indemnity, and all other writings obligatory in the nature thereof, and any such instrument executed by any such Attorney -in -Fact shall be as binding upon the Company as if signed and sealed by an Authorized Officer and, further, the Attomey-in-Fact is hereby authorized to verify any affidavit required to be attached to bonds, recognizances, contracts of indemnity, and all other writings obligatory in the nature thereof. This power of attorney is signed and sealed by facsimile under the authority of the following Resolution adopted by the Board of Directors of ATLANTIC SPECIALTY INSURANCE COMPANY on the twenty-fifth day of September, 2012: Resolved: That the signature of an Authorized Officer, the signature of the Secretary or the Assistant Secretary, and the Company seal may be affixed by facsimile to any power of attorney or to any certificate relating thereto appointing an Attorney -in -Fact for purposes only of executing and sealing any bond, undertaking, recognizance or other written obligation in the nature thereof, and any such signature and seal where so used, being hereby adopted by the Company as the original signature of such officer and the original seal of the Company, to be valid and binding upon the Company with the same force and effect as though manually affixed. TN WITNESS WHEREOF, ATLANTIC SPECIALTY INSURANCE COMPANY has caused these presents to be signed by an Authorized Officer and the seal of the Company to be affixed this first day of January, 2023. aW GpPPORgTF9�';, =� SEAL M=. `—' 1986 0 f By STATE OF N4INNESOTA cr2I +Fw vov, be Sarah A. Kolar, General Counsel HENNEPIN COUNTY On this first day of January, 2023, before me personally carve Sarah A. Kolar, General Counsel of ATLANTIC SPECIALTY INSURANCE COMPANY, to me personally known to be the individual and officer described in and who executed the preceding instrument, and she acknowledged the execution of the same, and being by me duly sworn, that she is the said officer of the Company aforesaid, and that the seal affixed to the preceding instrument is the seal of said Company and that the said seal and the signature as such officer was drily affixed and subscribed to the said instrument by the authority and at the direction of the Company. ALISON DWAN NASH•TROUT i NOTARY PUBLIC • MINNESOTA My Commission Expires it January 31, 2025 / V1140 Notary Public 1, the undersigned, Secretary of ATLANTIC SPECIALTY INSURANCE COMPANY, a New York Corporation, do hereby certify that the foregoing power of attorney is in full force and has not been revoked, and the resolutions set forth above are now in force. Signed and sealed. Dated 27th day of April 2023 \P�-I l IN 40 GpPPORgTF92�°:: SEAL m 1986 os This Power of Attorney expires�Fw'00,Ab? January 31, 2025 Kara Barrow, Secretary Please direct bond verifications to suretvOLntactinsurance.com Exhibit "E" Faithful Performance Bond CITY OF NEWPORT BEACH BOND NO. 800126533 FAITHFUL PERFORMANCE BOND The premium charges on this Bond is $@9 896-66. $4,250.00 WHEREAS, Parkhouse Residences, LLC, a Delaware limited liability company, as Licensee of the City of Newport Beach, State of California, has awarded to Parkhouse Residences, LLC, a Delaware limited liability company (hereinafter "Principal,") a contract to. Use of city property located at 4201 Uptown Newport Drive as a temporary construction staging yard for the storage and staging of materials and equipment during the term of the Project located at 4239 Uptown Newport Drive (hereinafter the "Contract"), and which Contract is hereby referred to and made a part hereof; and WHEREAS, it is Principal's responsibility, in strict conformity with the Agreement on file with Parkhouse Residences, LLC, and the office of the City Clerk of the City of Newport Beach, which is incorporated herein by this reference; and WHEREAS, Principal has executed or is about to execute the Contract or any Amendment thereto and the terms thereof require the furnishing of a Bond for the faithful performance of the License Agreement. NOW, THEREFORE, we, the Principal, and Atlantic Specialty Insurance Company , duly authorized to transact business under the laws of the State of California as Surety (hereinafter "Surety"), are held and firmly bound unto the City of Newport Beach, in the sum of Five Hundred Thousand Dollars and 00/100 ($500,000.00) lawful money of the United States of America, to be paid to the City of Newport Beach, its successors, and assigns; for which payment well and truly to be made, we bind ourselves, our heirs, executors and administrators, successors, or assigns, jointly and severally, firmly by these present. THE CONDITION OF THIS OBLIGATION IS SUCH, that if Principal, or Principal's heirs, executors, administrators, successors, or assigns, of its subcontractor or subcontractors, fail to abide by, and well and truly keep and perform any or all the covenants, conditions, and agreements in the Contract and any amendment thereto and any alteration thereof made as therein provided on its part, to be kept and performed at the time and in the manner therein specified, and in all respects according to its true intent and meaning, or fails to indemnify, defend, and save harmless the City of Newport Beach, its officers, employees and agents, as therein stipulated, then, Surety will faithfully perform the same, in an amount not exceeding the sum specified in this Bond; otherwise this obligation shall become null and void. As a part of the obligation secured hereby, and in addition to the face amount specified in this Performance Bond, there shall be included costs and reasonable Parkhouse Residences, LLC Exhibit E-1 expenses and fees, including reasonable attorney's fees, incurred by City, only in the event City is required to bring an action in law or equity against Surety to enforce the obligations of this Bond. Surety, for value received, stipulates and agrees that no change, extension of time, alterations or additions to the terms of the Contract and any amendment thereto or to the covenants, conditions, and agreements to be performed thereunder shall in any way affect its obligations on this Bond, and it does hereby waive notice of any such change, extension of time, alterations or additions of the Contract and any Amendment thereto. This Faithful Performance Bond shall be extended and maintained by Principal in full force and effect for the Term of the Agreement plus ninety (90) calendar days thereafter. In the event that Principal executed this bond as an individual, it is agreed that the death of any such Principal shall not exonerate Surety from its obligations under this Bond. IN WITNESS WHEREOF, this instrument has been duly executed by the Principal and Surety above named, on the 27th day of April ,20 23. Parkhouse Residences, LLC, a Delaware limited liability company &=. Name of Contractor (Principal) Authorized Signature i le Atlantic Specialty Insurance Company Name of Surety 605 Highway 169 North, Suite 800, Plymouth, MN 55441 Address of Surety (952) 852-2431 Telephone APPROVED AS TO FORM: CITY ATTOj3f4 � �OZIC�I Date: j / By: Aaron C. arp City Attorney v , �L�e Authorized Agent Signature Terah Lane, Attorney -In -Fact Print Name and Title NOTARY ACKNOWLEDGMENTS OF CONTRACTOR AND SURETY MUST BE ATTACHED Parkhouse Residences, LLC Exhibit E-2 ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of Ca Ufornia Cou of)SS.�/ On 20 96 b fore~ me,� Notary Publi , personally appeared who proved to me on the basis of satisfactory evidence to be the per on(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 signatures(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct._ i� TERRI HOVDESTAD Notary Public - California Orange NESS my a icial seal. Commission pounty 2406769 *my Comm. Expires Jun II, 202E Signature (sea ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of ) SS. On 20 before me, Notary Public, personally appeared 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 signatures(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (seal) Parkhouse Residences, LLC Exhibit E-3 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE 1189 �;.M:vv��:�w-,»w�vA ,wv��r,�.�.j.�r�:":::: :�;;i:�.�.:•:�%t�.vEn.Fv� ;r�n.,�;.in...`.:=:.n .; ;��.�� �v ���•�...r�v_�. n`r�r�r%:;�-.',�'^�'A•f�.�n �`;�i i. 1r..�=�•: r."� .... ....,.�;=•�",v:. A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached and not the truthfulness, accuracy; or validity of that document. State of California County of Orange ) On + I a- 1=a3 before me, personally appeared Vanessa Copeland Nanie(s) of Signer(s) Terah Lane Notary Public, who proved to me on the basis of satisfactory evidence to be the person(a) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in hfS/herftireir 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. m VANESSA COPELAND Notary Public - California Orange County Commission M 2424393 My Comm. Expires Oct 31, 2026 Place Notary Seal Above I certify tinder PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNEr yCand offic� l eal. S. natur Signatu r otary Public ----------- --------------- —-------------- -- --- -- OPTIONAL ------------------------------------------------ Though the information below is not required by law, it may prove valuable to persons relying on the document and could present fraudulent and reattachment of this form to another document. Description of Attached Document Type or Title of Document: Document Date: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: Terah Lane ❑ Individual ❑ Corporate Officer — Title(s): ❑ Partner: ❑Limited ❑ General © Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: Number of Pages: Capacity(ies) Claimed by Signer(s) Signer's Name: ❑ Individual ❑ Corporate Officer — Title(s): ❑ Partner: ❑Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: Rev. 1-15 intact INSURANCE Power of Attorney KNOW ALL MEN BY THESE PRESENTS, that ATLANTIC SPECIALTY INSURANCE COMPANY, a New York corporation with its principal office in Plymouth, Minnesota, does hereby constitute and appoint: Rachelle Rheault, Mike Parizino, James A. Schaller, Jeri Apodaca, Kim Lim, Heather Saltarelli, Kevin Cathcart, Vanessa Copeland, Teresa Jackson, Terah Lane, Eric Lowey, Mark Richardson, Lisa Pellerito, each individually if there be more than one named, its true and lawful Attomey-in-Fact, to make, execute, seal and deliver, for and on its behalf as surety, any and all bonds, recognizances, contracts of indemnity, and all other writings obligatory in the nature thereof; provided that no bond or undertaking executed under this authority shall exceed in amount the sum of: unlimited and the execution of such bonds, recognizances, contracts of indemnity, and all other writings obligatory in the nature thereof in pursuance of these presents, shall be as binding upon said Company as if they had been fully signed by an authorized officer of the Company and sealed with the Company seal. This Power of Attorney is made and executed by authority of the following resolutions adopted by the Board of Directors of ATLANTIC SPECIALTY INSURANCE COMPANY on the twenty-fifth day of September, 2012: Resolved: That the President, any Senior Vice President or Vice -President (each an "Authorized Officer") may execute for and in behalf of the Company any and all bonds, recognizances, contracts of indemnity, and all other writings obligatory in the nature thereof, and affix the seal of the Company thereto; and that the Authorized Officer may appoint and authorize an Attomey-in-Fact to execute on behalf of the Company any and all such instruments and to affix the Company seal thereto; and that the Authorized Officer may at any time remove any such Attorney -in -Fact and revoke all power and authority given to any such Attorney -in - Fact. Resolved: That the Attorney -in -Fact may be given full power and authority to execute for and in the name and on behalf of the Company any and all bonds, recognizances, contracts of indemnity, and all other writings obligatory in the nature thereof, and any such instrument executed by any such Attorney -in -Fact shall be as binding upon the Company as if signed and sealed by an Authorized Officer and, further, the Attomey-in-Fact is hereby authorized to verify any affidavit required to be attached to bonds, recognizances, contracts of indemnity, and all other writings obligatory in the nature thereof. This power of attorney is signed and sealed by facsimile under the authority of the following Resolution adopted by the Board of Directors of ATLANTIC SPECIALTY INSURANCE COMPANY on the twenty-fifth day of September, 2012: Resolved: That the signature of an Authorized Officer, the signature of the Secretary or the Assistant Secretary, and the Company seal may be affixed by facsimile to any power of attorney or to any certificate relating thereto appointing an Attomey-in-Fact for purposes only of executing and sealing any bond, undertaking, recognizance or other written obligation in the nature thereof, and any such signature and seal where so used, being hereby adopted by the Company as the original signature of such officer and the original seal of the Company, to be valid and binding upon the Company with the same force and effect as though manually affixed. IN WITNESS WHEREOF, ATLANTIC SPECIALTY INSURANCE COMPANY has caused these presents to be signed by an Authorized Officer and the seal of the Company to be affixed this first day of January, 2023. \P�0 I N gV9,.,, ago 4pPPoegrF?�=, =� SEAL m=_ 1986 o By STATE OF MINNESOTA '�26 �Fw voP� �b HENNEPIN COUNTY °'b �� e Sarah A. Kolar, General Counsel On this first day of January, 2023, before me personally came Sarah A. Kolar, General Counsel of ATLANTIC SPECIALTY INSURANCE COMPANY, to me personally known to be the individual and officer described in and who executed the preceding instrument, and she acknowledged the execution of the same, and being by me duly sworn, that she is the said officer of the Company aforesaid, and that the seal affixed to the preceding instrument is the seal of said Company and that the said seal and the signature as such officer was duly affixed and subscribed to the said instrument by the authority and at the direction of the Company. E N DWAN NASH•TROUT 'Y PUBLIC • MINNESOTAommission Expiresanuary 31, 2025 Notary Public I, the undersigned, Secretary of ATLANTIC SPECIALTY INSURANCE COMPANY, a New York Corporation, do hereby certify that the foregoing power of attorney is in full force and has not been revoked, and the resolutions set forth above are now in force. Signed and sealed. Dated 27th �y of April 2023 V "INS' U9'o,,, fQG GpNPORgpe 1,0% =y SEAL m 1986 o f This Power of Attorney expires s r2s �Fw voP��ay>:r IJanuary 31, 2025 I a •�� b 1 �� Kara Barrow, Secretary Please direct bond verifications to suretv(@iiitactbnsurance.com EXHIBIT "F" Insurance Requirements Without limiting Licensee's indemnification of City, Licensee will obtain, provide and maintain at its own expense during the Term of this Agreement, a policy or policies of insurance of the type, amounts and form acceptable to City. The policy or policies shall provide, at a minimum, those items described below. 1. Provision of Insurance. Without limiting Licensee's indemnification of City and prior to commencement of work on License Area by Licensee or Licensee's agents, representatives, consultants, contractors and/or subcontractors, Licensee shall obtain, provide and maintain at its own expense during the Term of this Agreement policies of insurance of the type and amounts described below and in a form satisfactory to City. Licensee agrees to provide insurance in accordance with requirements set forth herein. If Licensee uses existing coverage to comply and that coverage does not meet these requirements, Licensee agrees to amend, supplement or endorse the existing coverage. 2. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the insurance commissioner to transact business of insurance in the State of California, with an assigned policyholders' rating of A - (or higher) and financial size category class VII (or larger) in accordance with the latest edition of best's key rating guide, unless otherwise approved by the City's Risk Manager. 3. Coverage Requirements. A. Workers' Compensation Insurance. Licensee and Licensee's agents, representatives, consultants, contractors and/or sub/contractors, shall maintain Workers' Compensation Insurance, statutory limits, and Employer's Liability Insurance with limits of at least one million dollars ($1,000,000) each accident for bodily injury by accident and each employee for bodily injury by disease in accordance with the laws of the State of California, Section 3700 of the Labor Code. Licensee and Licensee's agents, representatives, consultants, contractors and/or subcontractors, shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its officers, agents, employees and volunteers. B. General Liability Insurance. Licensee and Licensee's agents, representatives, consultants, contractors and/or subcontractors, shall maintain commercial general liability insurance, and if necessary umbrella liability insurance, with coverage at least as broad as provided by Insurance Services Office form CG 00 01, in an amount not less than five million dollars ($5,000,000) per occurrence, five million dollars ($5,000,000) general aggregate The policy shall cover liability arising from License Area, Parkhouse Residences, LLC Exhibit F-1 operations, products -completed operations, personal and advertising injury, and liability assumed under an insured contract (including the tort liability of another assumed in a business contract) with no endorsement or modification limiting the scope of coverage for liability assumed under a contract. C. Automobile Liability Insurance. Licensee and Licensee's agents, representatives, consultants, contractors and/or subcontractors, shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than five million dollars ($5,000,000) combined single limit each accident. D. Professional Liability (Errors & Omissions) Insurance. Licensee shall require that Licensee's consultants, contractors and/or subcontractors providing any design, engineering, surveying or architectural services for the License Area maintain professional liability insurance that covers the services to be performed, in the minimum amount of one million dollars ($1,000,000) per claim and two million dollars ($2,000,000) in the aggregate. Any policy inception date, continuity date, or retroactive date must be before the Effective Date of this Agreement and Licensee shall require that Licensee's consultants, contractors and/or subcontractors agree to maintain continuous coverage through a period no less than three (3) years after completion of the services performed. E. Products -Completed Operations. Licensee shall require and verify that Licensee's construction contractors and subcontractors maintain commercial general liability insurance, including products -completed operations, for a period of at least five (5) years from the time that all work is completed or obtain coverage for completed operations liability for an equivalent period. F. Builder's Risk Insurance. During construction, Licensee shall maintain Builder's Risk Insurance to cover "All Risk" of physical loss including coverage for loss or damage from collapse resulting from builder's design error. All property stored off -site or in transit must be covered. The value insured shall cover 100% of the completed contract cost and include Boiler & Machinery and Soft Costs and shall be maintained until full acceptance by City. The "All Risk" coverage shall contain no coinsurance clause. Earthquake and flood coverage shall be covered to 100% of the completed contract cost. A waiver of subrogation and primary and non-contributory endorsements shall be provided to City. Proceeds payable under this insurance shall be fully payable to City as Loss Payee. Licensee shall be solely responsible for the payment of any deductible. Parkhouse Residences, LLC Exhibit F-2 G. Property Insurance. Licensee shall maintain property insurance throughout the Term of the Agreement on an "All Risk" basis equal to the full replacement cost of the License Area. The insurance shall contain no coinsurance clause. A waiver of subrogation and primary and noncontributory endorsements shall be provided to City. Proceeds payable under the insurance shall be fully payable to City as Loss Payee. Earthquake and flood coverage shall be covered to 100% of the completed contract cost. Licensee shall be solely responsible for the payment of any deductible. H. Pollution Liability Insurance. Licensee shall require that Licensee's construction contractors and subcontractors maintain a policy providing contractor's pollution liability ("CPL") coverage with a total limit of liability of no less than two million dollars ($2,000,000) per loss and in the aggregate per policy period dedicated to this project. The CPL shall be obtained on an occurrence basis for a policy term inclusive of the entire period of construction. If all or any portion of CPL coverage is available only on a claims -made basis, then a 10-year extended reporting period shall also be purchased. The CPL policy shall include coverage for cleanup costs, third - party bodily injury and property damage, including loss of use of damaged property or of property that has not been physically injured or destroyed, resulting from pollution conditions caused by contracting operations. Coverage as required in this paragraph shall apply to sudden and non - sudden pollution conditions resulting from the escape or release of smoke, vapors, fumes, acids, alkalis, toxic chemicals, liquids, or gases, waste materials, or other irritants, contaminants, or pollutants. The CPL shall also provide coverage for transportation and off -site disposal of materials. The policy shall not contain any provision or exclusion (including any so-called "insured versus insured" exclusion or "cross -liability" exclusion) the effect of which would be to prevent, bar, or otherwise preclude any insured or additional insured under the policy from making a claim which would otherwise be covered by such policy on the grounds that the claim is brought by an insured or additional insured against an insured or additional insured under the policy. 4. Endorsements. Policies shall contain or be endorsed to contain, the following provisions: A. Additional Insured Status. City, its elected or appointed officers, boards and commissions, officials, employees, agents and volunteers are to be covered as an additional insured under all general liability, automobile liability and pollution liability policies with respect to liability arising out of Licensee's activities related to this Agreement and with respect to use or occupancy of the License Area. B. Primary and Non -Contributory. Policies shall be considered primary insurance as respects to City, its elected or appointed officers, boards and Parkhouse Residences, LLC Exhibit F-3 commissions, officials, employees, agents and volunteers as respects to all claims, losses, or liability arising directly or indirectly from Licensee's operations. Any insurance maintained by City, including any self -insured retention City may have, shall be considered excess insurance only and not contributory with the insurance provided hereunder. C. Liability Insurance. Liability insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. A. Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this Agreement shall be endorsed to waive subrogation against City, its elected or appointed officers, boards and commissions, agents, officials, employees and volunteers or shall specifically allow Licensee or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Licensee hereby waives its own right of recovery against City, and shall require similar written express waivers from each of its agents, representatives, consultants, contractors and/or subcontractors. B. Reporting Provisions. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, its officers, agents, employees and volunteers C. Notice of Cancellation. The insurance required by this Agreement shall not be suspended, voided, canceled or reduced in coverage or in limits except after thirty (30) calendar days (ten (10) calendar days written notice of non- payment of premium) written notice has been received by City. It is Licensee's obligation to ensure that provisions for such notice have been established. 5. Additional Requirements. A. In the event City determines that (i) the Licensee's activities on the License Area creates an increased or decreased risk of loss to the City, (ii) greater insurance coverage is required due to the passage of time, or (iii) changes in the industry require different coverage be obtained, Licensee agrees that the minimum limits of any insurance policy required to be obtained by Licensee or Licensee's consultants, contractors or subcontractors, may be changed accordingly upon receipt of written notice from City. With respect to changes in insurance requirements that are available from Licensee's then -existing insurance carrier, Licensee shall deposit certificates evidencing acceptable insurance policies with City incorporating such changes within thirty (30) calendar days of receipt of such notice. With respect to changes in insurance requirements that are not available from Licensee's then- existing insurance carrier, Licensee shall deposit certificates evidencing acceptable insurance policies with City, Parkhouse Residences, LLC Exhibit F-4 incorporating such changes, within ninety (90) calendar days of receipt of such notice. B. Any deductibles or self -insured retentions applicable to the commercial property or insurance purchased in compliance with the requirements set forth herein shall be approved by City. C. Licensee and Licensee's consultants, contractors and/or subcontractors shall be subject to the insurance requirements contained herein unless otherwise specified in the provisions above or written approval is granted by City. Licensee shall verify that all consultants, contractors and/or subcontractors maintain insurance meeting all the requirements stated herein, and Licensee shall ensure that City is an additional insured on insurance required from contractors, consultants and/or subcontractors. D. For general liability coverage, contractors, consultants and/or subcontractors shall provide coverage with a format at least as broad as provided by Insurance Services Office form CG 20 38 0413. Unless written approval is granted by City, contractors and/or subcontractors shall also provide an additional insured endorsement at least as broad as ISO Form CG 20 37. 6. City's Right to Revise Requirements. A. The City reserves the right at any time during the term of the Agreement to change the amounts and types of insurance required by giving the Licensee ninety (90) calendar days advance written notice of such change. B. Licensee shall give City prompt and timely notice of any claim made or suit arising out of or resulting from Licensee or Licensee's agents, representatives, consultants, contractors and/or subcontractors performance under this Agreement. C. Licensee shall provide certificates of insurance, with original endorsements as required above, to City as evidence of the insurance coverage required herein. Insurance certificates must be approved by City prior to commencement of work or issuance of any permit. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. D. All required insurance shall be in force on the Effective Date, and shall be maintained continuously in force throughout the term of this Agreement. In addition, the cost of all required insurance shall be borne by Licensee or by Licensee's consultants, contractors or subcontractors. E. If Licensee or Licensee's consultants, contractors or subcontractors fail or refuse to maintain insurance as required in this Agreement, or fail to provide proof of insurance, City has the right to declare this Agreement in default Parkhouse Residences, LLC Exhibit F-5 without further notice to Licensee, and City shall be entitled to exercise all available remedies. F. Licensee agrees not to use the License Area in any manner, even if use is for purposes stated herein, that will result in the cancellation of any insurance City may have on the License Area or on adjacent License Area, or that will cause cancellation of any other insurance coverage for the License Area or adjoining License Area. Licensee further agrees not to keep on the License Area or permit to be kept, used, or sold thereon, anything prohibited by any fire or other insurance policy covering the License Area. Licensee shall, at its sole expense, comply with all reasonable requirements for maintaining fire and other insurance coverage on the License Area. Parkhouse Residences, LLC Exhibit F-6 _ . { ' / . / 6 g o ) . §• \ \ o L \ $ < < � < u - & % 2 \ \ = 5 = S 2 { 7 « 2 - . \ ` § } « � / \ / 2 \ g / - ) / 8 ; £ } � § . \ \ $ ti . @ 0 . . ce \ ) ® \ m 2 R ) m \ \ \ \ m @ ; < \ / / § / _ / . 0-/ / § § ) .. \ 7 7 c k = o < ) ) 6 /