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HomeMy WebLinkAbout08 - Acceptance of Use Permit Agreement for Construction of a Traffic Signal at Seaward Road and East Coast Highway (Use Permit No. 3561)January 25, 1999 CITY COUNCIL AGENDA ITEM NO. 8 TO: Mayor and Members of the City Council FROM: Public Works Department SUBJECT: ACCEPTANCE OF USE PERMIT AGREEMENT FOR CONSTRUCTION OF A TRAFFIC SIGNAL AT SEAWARD ROAD AND EAST COAST HIGHWAY (USE PERMIT NO. 3561) DEVELOPER: BIRTCHER SENIOR PROPERTIES 2, LLC RECOMMENDATION: Approve a Use Permit agreement guaranteeing completion of the public improvements required with Use Permit No. 3561; and authorize the Mayor and the City Clerk to execute the agreement. DISCUSSION: On July 20, 1995, the Planning Commission conditionally approved Use Permit No. 3561, permitting the construction of an 84 unit elderly personal care facility on property located at 3901 East Coast Highway. The conditions of approval require that the developer be responsible for their fair share of traffic signal construction at the intersection of Seaward Road and East Coast Highway if warrants are met within 5 years. In order to guarantee completion of the public improvements, the developer has executed an appropriate agreement and provided the accompanying security in the form of a faithful performance bond (Bond No. 8150494). The agreement establishes the developer's obligation to complete the public improvement construction. The faithful performance surety is in the amount of $30,000.00, which is 25% of the estimated cost of the traffic signal improvements. It is recommended that action be taken to approve the Use Permit agreement. Respectfully submitted, 0& Don Webb Public Works Director By: Richard L. Aoffstadt, P.E. Development Engineer Attachments: Exhibit showing location of development Use Permit agreement and accompanying bond f:\users\pbw \shared \council \fy98- 99yan -25 \use permit 3561- ag.doc VICINITY MAP USE PERMIT NO. 3561 ••.. 14. G � ,5 ..n, c � (( �re d 1 w 9J CC +. ' 4 : w. .•n• 4. � 1 \ )�1 +� . v g !` 'VST . 1p G ,L yy e • ' s� �,Y +F ` w., \ /�� a G G n ., w.. �Ip +. °5 ' 'r o p� 2, a •. ....r... PROJECT SITE i .y •b ll.• 0 '•' FUTURE SIGNAL LOCATION E DISTRICTING MAP NEWPORT BEACH - CALIFORNIA ' .!.(Vi V••. •INR.rrY• •V.•u.! S19l. n.t Yi.! I..R• nWnn.t ! 1 •u.• fP•INU. �-/ GV•t!! 1l1ElM.. !�I !l.l..tlY.INY. K.0 4f1 n YR•Y4 Mw. .0((M4 r+.....hn.! � lwlwwl Y••.(11 •V' /n4.11 ^rt• YII V0. K, n.nn �I �t •.M �. Iw In L.l lr�. - -Tw.r `/ V I USE PERMIT NO. 3561 AGREEMENT FOR CONSTRUCTION OF IMPROVEMENTS (USE PERMIT NO. 3561) THIS AGREEMENT, made and entered into this 5 day of Janus v , 1999__, by and between Rtrtrhrr Prapo,t;o� v rrr , se is 27611 La Paz Road, Laguna Niguel, California 926 , and if an individual, whose residence address is AIR hereinafter referred to as " PERMITTEE" and the CITY OF NEWPORT BEACH, a municipal corporation, organized and existing under and by virtue of its Charter and the Constitution and the laws of the State of California, hereinafter referred to as "CITY "; WITNESSETH: WHEREAS, PERMITTEE has applied for a use permit for the use and /or development of land within the City of Newport Beach to be known as Use Permit No. 3561 (hereinafter the "Use Permit ") pursuant to provisions of the CITY's ordinances and regulations; and WHEREAS, Use Permit has been approved, subject to certain requirements and conditions of approval, which are incorporated into this Agreement by reference ( "Conditions of Approval "); and WHEREAS, in consideration of approval of the Use Permit by the CITY and in compliance with the conditions of approval, PERMITTEE desires to enter into this Agreement, whereby PERMITTEE promises to install and complete, at PERMITTEE'S own expense, street and other public improvement work required by CITY in connection with the proposed development, (the "Improvements ") which Improvements, without limitation by enumeration consists of: Payment for a 25% portion of Traffic signal improvements at the intersection of Seaward Road and East Coast Highway if warrants are met within 5 years. The above description of items is understood to be only a general description of the Improvements, and not a binding description. PERMITTEE has secured this Agreement by improvement security required by City Ordinance; and WHEREAS, complete plans for the construction, installation and completion of the Improvements shall be prepared by PERMITTEE and approved by the City Engineer, (the "Improvement Plans ") . All references in this Agreement to the Improvement Plans shall include reference to any specifications for the Improvements as approved by the City Engineer; and WHEREAS, PERMITTEE recognizes that by approval of the Use Permit CITY has conferred substantial rights upon PERMITTEE. As a result, CITY will be damaged to the extent of the cost of installation of the Improvements by PERMITTEE's failure to perform its obligations under this Agreement, including, but not limited to, PERMITTEE's obligation to commence construction of the Improvements by the time established in this Agreement. CITY shall be entitled to all remedies available to it pursuant to this Agreement and law ; and NOW, THEREFORE, in consideration of their mutual promises, the Parties hereto agree as follows: 1. PERMITTEE agrees to comply with all requirements of the Conditions of Approval. 2. PERMITTEE agrees to complete all Improvements in accordance with Improvement Plans approved by the City Engineer, including all improvements required by the Municipal Code which were not specifically waived by the Planning Commission or City Council approving the Use Permit, plus any additional improvements required by the Planning Commission or City Council as a condition of approving the Use Permit. PERMITTEE shall acquire and dedicate, or pay the cost of acquisition by CITY, of all rights -of -way, easements and other interests in real property for construction or installation of the public improvements, free and clear of all liens and encumbrances. The PERMITTEE's obligations with regard to acquisition by CITY of offsite rights -of -way, easements and other interests in real property shall be subject to a separate agreement between PERMITTEE and CITY. PERMITTEE shall also be responsible for obtaining any public or private drainage easements or authorization to accommodate the development. 3. PERMITTEE agrees to complete the Improvements within a period of 60 months from the date hereof, unless the time is extended by the CITY upon written application of the PERMITTEE. It is understood that by providing security for this Agreement, the surety consents in advance to any extension of time as may be given by the CITY to the PERMITTEE and waives notices of such extension. The making of an application for an extension of time by the PERMITTEE shall, upon the granting of the application by the CITY, constitute a waiver by the PERMITTEE and by the surety of all defenses of laches, 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 PERMITTEE's performance of this agreement by furnishing to CITY security in the amount of Thirty Thousand and no /100---- - - - - -- dollars ($30.000.00 ) to guarantee the performance of this Agreement. The PERMITTEE shall provide security in the amount of N/A dollars ($ ) to guarantee payment to any contractors, subcontractors, and persons furnishing labor, materials and equipment to them for the performance of the work herein described. Said security shall be in the form of Performance Bond (Bond Nos. /Certificate of Deposit No's. 8150494 ). a. The PERMITTEE promises and agrees to maintain all of the Improvements to be constructed under this Agreement in a state of good repair, until all of the work and Improvements are completed and accepted by or on behalf of the CITY and until the security for the performance of this Agreement is released. Maintenance of the Improvements shall include, but shall not be limited to, repair of pavement, curbs, gutters, sidewalks, parkways, sewers, and removal of debris from sewers and storm drains; and shall also include, but not be limited to by this enumeration, sweeping, repairing and maintaining in good and safe condition all streets and street improvements. Upon failure of the PERMITTEE to properly maintain the Improvements, the CITY may do all necessary work required by this paragraph, the cost thereof being chargeable to the PERMITTEE and his surety under this Agreement. 9. The securities required by this Agreement shall be released as follows: a. Security given for faithful performance of any act, obligation, work or agreement shall be released upon the final completion and acceptance of the act or work. b. Security given to secure payment to the contractors, his or her subcontractors and to persons furnishing labor, materials or equipment shall, six months after the completion and acceptance of the work, be reduced to an amount equal to the total claimed by all claimants for whom liens have been filed and of which notice has been given to the legislative body, plus an amount reasonably determined by the City Engineer to be 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 alternative safe and feasible design. After acceptance of the Improvements, the PERMITTEE shall remain obligated to eliminate any defect in design or dangerous condition caused by the design or construction defect, however PERMITTEE shall not be responsible for routine maintenance. It is the intent of this section that PERMITTEE shall be 3 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. 12. If the PERMITTEE and the surety fail to install all or any part of the Improvements required by this Agreement within the time set forth herein, or fail to comply with any other obligation contained herein, they shall be jointly and severally liable to the CITY for any administrative expenses and attorney's fees and costs incurred in obtaining compliance with this Agreement and any such expenses and fees incurred in processing any action for damages or for any other remedies permitted by law. IN WITNESS WHEREOF, PERMITTEE has executed this Agreement and the CITY OF NEWPORT BEACH has caused its corporate name and seal to be affixed by its Mayor and City Clerk thereunto duly authorized as of the day and year first above written. CITY OF NEWPORT BEACH, a municipal corporation By: Mayor ATTEST: PERMITTEE City Clerk j APPROVED AS TO FORM: City Attorney UV.AGT 10/8/92 CALIFORNIA ALL - PURPOSE ACKNOWLEDGMENT State of A ell L7personally known to me – to be the person ho wse name is/ne subscribed to the within instrum nt and acknowledge to me that he/ww�wexecuted the same in his /�tp"uthorized capaaty(�nd that by BONME B. MOrrRt3 his /.beVtgpjFsignature, &non the instrument the pers *S COb1NLI106A790 or the entity upon behalf of which the perso acted, z Qkv Noftay HbOc — CaBfalVa ORANGE COUNTY executed the instrument. Comm. E>Ktree APR 2J. 1999 WITNESS my hand and official seal. ere of Noi'C OPTIONAL Though the information below is not required bylaw, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this loan to another document. Description of Attached Document Title or Type of Document: U Document Date: J�YLt(�I_ :� ���!% Number of Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: a Is Individual Corporate Officer Title(s): Partner —❑ Limited ❑ General Attomey -in -Fact Trustee Guardian or Conservator Other: Signer Is Representing: RIGHT THUMBPRINT OF SIGNER Signer's Name: • Individual • Corporate Officer Title(s): • Partner — ❑ Limited ❑ General ❑ Attomey -in -Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: RIGHT THUMBPRINT OF SIGNER 0 1994 National Notary Association • 8236 Remmet Ave.. P.O. Box 7191 • Canoga Park. CA 91309 -7180 Pmd. No. 5907 Rwnfer. Call Tall -Free 1- 9008766827 Bond No. 8150494 CITY OF NEWPORT BEACH USE PERMIT FAITHFUL PERFORMANCE BOND WHEREAS, the City Council of the City of Newport Beach, County of orange, State of California, and Birtcher t s v 9 llr 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 condicignns of approval to Use Permit No. 1sr;i which said agreement, dated -�J and identified as Agreement for Construction of improvements se Permit No. 3561 ), is hereby referred to and made a part hereof (the "Agreement "); and WHEREAS, Principal is required under the terms of the Agreement to furnish a bond for the faithful performance of the Agreement, NOW, THEREFORE, we the Principal and eiaeut ana ue osu mum an of �,a.r.a,.. , as surety, whose place of business is 300 Saint Paul Place, Baltimore, MD 2 a corporation organized and doing business under and by virtue of the laws of the State of land 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, matterialmen, and other persons em pto ed in the pperformance of the Agrlp Ub in the penal sum of Thirty Thousand and No /I00- ----- -- - - -- Dollars (5 )f lawful money of the United States, for the payment of which sum well and truly to be made, we bind ourselves, our heirs, successors, executors, and administrators, jointly and severally, firmly be these presents. The condition of this obligation is that if the above bound Principal, his, her or its heirs, executors, administrators, successors, or assigns, shall in all things stand to and abide by, and well and truly keep and perform the covenants, conditions and provisions in the Agreement and any alteration thereof made as therein provided, on his or their part., to be kept and performed at the time and in the manner therein specified, and in all respects according to their true intent and meaning, and shall indemnify and sage harmless City, its officers, agents, and employees, as therein stipulated, then this obligation shall become null and void; otherwise, it shall be and remain in full force and effect- As part of the obligation secured hereby and in addition to the face amount specified therefor, there shall be included costs and reasonable expenses and fees, included reasonable attorney's fees, incurred by City in successfully enforcing such obligation, all to be taxed as costs and included in any judgement rendered. The Surety and Principal further agree in the event the work and improvements are not completed with the time allowed by the said agreement or any extensions thereof as may be granted by the City, the City may, at its option, and in addition to any other remedies available by law, complete or arrange for completion of the work and improvements, and all costs and expenses therefor shall become a debt due and owing said City, as set forth in the Agreement. The Surety hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Agreement or to the work to be performed thereunder or the specifications accompanying the same,shall in anywise affect its obligatlons on this bond and it does hereby waive notice of any change, extension of time, alteration or additlon to the terms of the Agreement, or to the work, or to the specifications- IN WITNESS WHEREOF, this instrument has been duly executed by the Principal and Surety above named on December 31 1998 Approved as to Sufficiency: By Birtcher Senior Properties 2, LLC Public corks Director Approved as to Form: City Attorney ♦G \UP- PER -9 ; 9/25/92 By Fidelitv and By pal of Maryland STATE OF MINNESOTA ) COUNTY OF HENNEPIN ) ss: On December 31 , 19 98, before me, A Notary Public within and for said County and State, personally appeared Jill N. Swanson known to me to be the Attorney -in -Fact of the Fidelity and Deposit Company of Maryland corporation described in and that executed the within and foregoing instrument and known to me to be the person who executed the said instrument in behalf of said corporation and,hg_0,y„yl ,,acknowledged to me that such corporation executed the same. JHY M. waRN'r; PUFLIG - �AiNIJF iOT =. 4W f, Power of Attorney FIDELITY AND DEPOSIT COMPANY OF MARYLAND HOME OFFICE. BALTIMORE. MD KNOW ALL MEN BY THESE PRESENTS: That the FIDELITY AND DEPOSIT COMPANY OF MARYLAND, a corporation of the Stare of Maryland, by C. M. PECOT, JR., Vice - President, and C. W. ROBBINS, Assistant Secretary, in pursuance of authority granted by Article VI, Section 2, of the By -Laws of said Company, which are set forth on the reverse side hereof and are hereby certified to be in full force and effect on the date hereof, does hereby nominate, constitute and ap t Laurie Wheeler, Dennis G- Loots, Allan J- Klotsche, Richard G- Donovan, Ray C %ningso��gg�.,r -, Patricia A- Siefring and Jill N- Swanson, all of Minneapolis, Mi =� a EAM- - - - -- execute, any and all bonds and undertakings - - - -- e execution of such bonds or undertakings in I amply, to all intents and purposes, as if they had been at its office in Baltimore, Md., in their own proper I behalf of Laurie F- Wheeler, etal� The said Assistant Secretary does hereby certify t%ie 2, of the By -Laws of said Company, and is now orce IN WITNESS WHEREOF, the said Vice -P nt and Corporate Seal of the said FIDELITY AND SIT Cob _- _Feb ruarx A_D. 1995 - ^'*� FIDELITY AND DEBd ATTEST- SEAL # x STATE OF MARYLAND COUNTY OF BALTIMORE { �' behalf as surety, and as its act and deed: these pr ;'shall be as binding upon said Company, as fully and d and ledged by the regularly elected officers of the Company P of attorney revokes that issued on i=�51 1994_ extract s6l�flaAr on the reverse side hereof is a true copy of Article VI, Section r Secretary have hereunto subscribed their names and affixed the OF MARYLAND, this______ __________24tnh_-- -__ -_- ____day Of COMPANY OF MARYLAND \ 1 D By Wce -Pr ident �— On this_ 24th ---- day Of February _ A.D, 19 95, before the subscriber, a Notary Public of the State of Maryland, duty commissioned and qualified, came C. M. PECOT, JR., Vice - President and C. W. ROBBINS, Assistant Secretary of the FIDELITY AND DEPOSIT COMPANY OF MARYLAND, to me personally known to be the individuals and officers described in and who executed the preceding instrument, and they each acknowledged the execution of the same, and being by me duly sworn, severally and each for himself deposeth and saith, that they are the said officers of the Company aforesaid, and that the seal affixed to the preceding instrument is the Corporate Seal of said Company, and that the said Corporate Seal and their signatures as such officers were duly affixed and subscribed to the said instrument by the authority and direction of the said Corporation. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my Official Seal the day and year first above w 'it n. agm CAROL J. FADER Notary Public My Commission CERTIFICATE I, the undersigned, Assistant Secretary of the FIDELITY AND DEPOSIT COMPANY OF MARYLAND, do hereby certify that the original Power of Attorney of which the foregoing is a full, true and correct copy, is in full force and effect on the date of this certificate; and I do further certify that the Vice - President who executed the said Power of Attorney was one of the additional Vice- Presidents specially authorized by the Board of Directors to appoint any Attorney -in -Fact as provided in Article VI, Section 2, of the By -Laws of the FIDELITY AND DEPOSIT COMPANY OF MARYLAND. This Certificate may be signed by facsimile under and by authority of the following resolution of the Board of Directors of the FIDELITY AND DEPOSIT COMPANY OF MARYLAND at a meeting duly called and held on the 16th day of July, 1969_ RESOLVED: "That the facsimile or mechanically reproduced signature of any Assistant Secretary of the Company, whether trade heretofore or hereafter, wherever appearing upon a certified copy of any power of attorney issued by the Company, shall be valid and binding upon the Company with the same force and effect as though manually affixed." IN TESTIMONY WHEREOF, I have hereunto subscribed my name and affixed the corporate sea] of the said Company, this __ 31st day of ....... December____ ....... ____ 9 19.98 -. Auisranr Secrerary LI<z& 184 -8370 In CALIFORNIA ALL - PURPOSE ACKNOWLEDGMENT State of County of V n On b ore me, N 1.)l L-3. Ittd�.5 oim,j P,,k, e� oafs Name and rifle of Oaicsr (e.g.. 'Jane Dos, Notary P Ik' personally appeared Name(s) of Signer(s) personally known tome —OR — to be the person(e)' whose name Wis/4mr'subscribed to the within instrument and acknowledged to me that he/sWthep executed the same in hislj of ttpirauthorized capacity,(iesr and that by 80NME B. MORRO COMM. i 1056790 (Cf Notary P c — CoBfornla ORANGECOUNN My comet. E1�Ires APR 23.1999 his/pef/ttjtairsignaturef,Kron the instrument the persori(ej�," or the entity upon behalf of which the persorgj acted, executed the instrument. WITNESS my hand and official seal. Signature of Notary Public OPTIONAL Though the information below is not required bylaw, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: v Document Date: f Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: L m Individual Corporate Officer Title(s): Partner —❑ Limited ❑ General Attomey -in -Fact Trustee Guardian or Conservator Other., Signer Is Representing: RIGHT THUMBPRINT OF SIGNER Signer's Name: ■ s Number of Pages: '/'tW Individual Corporate Officer Title(s): Partner —❑ Limited ❑ General Attomey -in -Fact Trustee Guardian or Conservator Other. Signer Is Representing: 31SDr'/ RIGHT THUMBPRINT OF SIGNER 0 1994 National Notary Association • 8236 Remmet Ave., P.O. Box 7184 • Canoga Park. CA 91309-7184 Prod. No. 5907 Reorder: Call Toll -Free 1.800. 8766827