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HomeMy WebLinkAbout11 - Use Permit No. 3612November 23, 1998 CITY COUNCIL AGENDA ITEM NO. 11 TO: MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: PUBLIC WORKS DEPARTMENT SUBJECT: USE PERMIT NO. 3612 LOCATION: 3100 West Coast Highway DEVELOPER: T.L.A., Inc. RECOMMENDATIONS: 1. Approve the improvement plans and specifications and accept the public improvements constructed in conjunction with Use Permit No. 3612. 2. Authorize the City Clerk to release the faithful performance bond (Certificate of Deposit No. 2084 7800). 3. Authorize the city clerk to release the labor and material bond (Certificate of Deposit No. 2084 7800) in six months, provided no claims have been filed. DISCUSSION: The public improvements constructed in conjunction with Use Permit No. 3612 have been inspected and are satisfactory for acceptance. An exhibit is attached for reference. These public improvements include the construction of frontage improvements (curbs, gutters, sidewalk, pavement and retaining wall improvements) across the Avon Street frontage. These improvements will be maintained by the City. D bU" s bmitted, b Public Works Director By: Richard L. offstadt, P.E. Development Engineer Attachments: Site Plan of Development Use Permit Agreement \ \MIS_1 \SYS\ Users \PBW\Shared \COUNCIL \FY98 -99 \Nov -23 \Use Permit 3612.doc r e _ • o, ME 0 I i 41 AGREEMENT I FOR CONSTRUCTION OF IMPROVEMENTS (USE PERMIT NO. ,3k ) THIS AGREEMENT, made and entered 199 B , by and between Z� if an individual, whose res this _ � day of and , 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. 3411 (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: 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 'h 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 aq 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 TWPn #ano, _rA5u4ar cC dollars ($ at 000. pO ) to guarantee the p rformance of this Agreement. The PE ITTEE shall provide security in the amount of Tt./enfv fJjge T%ds <.z..d dollars ($ oo ) to guarantee paytent to any contractors, subcontractor d, 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 L'.'O r (Bond Nos. /Certificate of Deposit No's. 206tt opcc t aai,[ »di ) . R, r 8. The PERMITTEE promises and agrees to maintain all of the Improvements to be constructed under this Agreement in a state of good repair, until all of the work and Improvements are completed and accepted by or on behalf of the CITY and until the security for the performance of this Agreement is released. Maintenance of the Improvements shall include, but shall not be limited to, repair of pavement, curbs, gutters, sidewalks, parkways, sewers, and removal of debris from sewers and storm drains; and shall also include, but not be limited to by this enumeration, sweeping, repairing and maintaining in good and safe condition all streets and street improvements. Upon failure of the PERMITTEE to properly maintain the Improvements, the CITY may do all necessary work required by this paragraph, the cost thereof being chargeable to the PERMITTEE and his surety under this Agreement. 9. The securities required by this Agreement shall be released as follows: a. Security given for faithful performance of any act, obligation, work or agreement shall be released upon the final completion and acceptance of the act or work. b. Security given to secure payment to the contractors, his or her subcontractors and to persons 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 I 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. ATTEST: 1 "I tVT,rry City Clerk APPROVE S TO FORM: C1 y ttorney UV.AGT 10/8/92 CITY OF NEWPORT BEACH, a municipal co ati By: ayo PERMITTEE LOA i/ i = U. -quo SEAF/RST BANK LAt3a2 {,tMNT <•2i4 c. S.�iJ'T� C e v- t i f i c a t e o f D e p o s i t R e c e i p t INVESTOR(S): DATL March 31• 1998 By TLA, Inc. Made Payable to MATURITY City of Newport Beach, CA DATE _— June-3Qi 1998 TERM OF INVESTMENT�_MOn Bank of America National Trust and Savings Association doing business as Seafirst Bank accepts for deposit the sum of S 29, 000.00 as evidenced by this receipt and will pay the amount of the deposit plus interest to the investor(s), subject to the terms of the deposit agreement. Fixed Rate CDs You have purchased a fixed rate CD. The interest rate on your CD is A,,62—% with an annual percentage yield of _L ,.]Q %. You will be paid this rate until the maturity date shown above. For those CDs with compound interest, the annual percentage yield assumes interest remains on deposit until maturity. A withdrawal will reduce earnings. 3 – 12 Month Term (365/365 1366 days in a Icap year] Method) You may have interest credited to your Seafirst checking or savings account or request that a cashiers check be mailed to you: ❑ Monthly ❑ Quarterly ❑ At Maturity If you do not select any of those options, interest will automatically be credited to your CD balance at maturity [� I – 10 Year Term (365/365 [366 days in a leap year] Method) You may have interest credited to your Seafirst checking or savings account or request that a cashier s check be mailed to you: ❑ Monthly ❑ Quarterly If you do not select either of those options. interest will automatically be credited to your CD balance quarterly. ❑ Jumbo CD: Term 14 Days – 365 Days (365/360 Method) You may have interest credited to your Seafirst checking or savings account or request that a cashiers check be mailed to you: [I Monthly ❑ Quarterly ❑ Semt- Annually ❑ At Maturity If you do not select any of those options, interest will automatically be credited to your CD balance at maturity. E] Jumbo CD: Term 366 Days – No Maximum (365/360 Method) SIMPLE INTEREST You may have interest credited to your Bank checking or savings account or request that a cashier's check be mailed to you: ❑ Monthly ❑ Quarterly ❑ Semi - Amorally If you do not select any of those options, interest will automatically be credited to your CD balance semi- annually. COMPOUND INTEREST ❑ Interest will be credited to your CD Balance semi- annually. Variable Rate CDs You have purchased a variable rate CD. The interest rate on your CD is % with an annual percentage yield of %. The annual percentage yield assumes interest remains on deposit until maturity. A withdrawal will reduce earnings. Your interest rate and annual percentage yield may change. An explanation of the determination of the interest rate and the frequency of interest rate changes can be found in the deposit agreement which you will receive with this receipt. Peak: Term 1 Year (365/365 (366 days in a leap year] Method) You may have interest credited to your Seafirst checking or savings account or request that a cashier's check be trailed to you: ❑ Monthly ❑ Quarterly If you do not select either of those options, interest will automatically be credited to your CD balance quarterly. Guaranteed Growth: Term 18 Months (365/365 [366 days in a leap year] Method) You may have interest credited to your Seafirst checking or savings account or request that a cashier's check be mailed to you: ❑ Monthly ❑ Quarterly If you do not select either of those options, interest will automatically be credited to your CD balance quarterly. Interest Crediting Method EJ Credit to checking account number Credit to savings account number _ Cashier's check. Method of Payment Charge ® Checking 77096803 Savings signztu T h a n k y o u f o r i n v e s t i n g w i t h S e a f i r s t ^_ .. � I C e r t i f i c a t INVESTOR(S): By TLA, Inc. Made Payable to City of Newport Beach, CA U. SEAF/RST BANK e o f D e p o s i t R e c e i p t ISSUE DATE 31. 1998 DATE —. — MATURITY DATE June 30, 1998 TERM OF INVESTMENT 3 Months _. Bank of America National Trust and Savings Association doing business as Seafirst Bank accepts for deposit the sum of S_29, QOp.40 _ as evidenced by this receipt and will pay the amount of the deposit plus interest to the invcstor(s), subject to the terms of the deposit agreement. Fixed Rate CDs You have purchased a fixed rate CD. The interest rate on your CD is-4-.62--% with an annual percentage yield of 4_,.]_0 — %. You will be paid this rate until the maturity date shown above. For those CDs with compound interest, the annual percentage yield assumes interest remains on deposit until maturity. A withdrawal will reduce earnings. 3 — 12 Month Term (365/365 1366 days in a ]cap year] Method) You may have interest credited to your Seafirst checking or savings account or request that a cashier's check be mailed to you: ❑ Monthly ❑ Quarterly ❑ At Maturity If you do not select any of those options, interest will automatically be credited to your CD balance at maturity. ❑ I — 10 Year Term (365/365 [366 days in a leap year] Method) You may have interest credited to your Seafirst checking or savings account or request that a cashier's check be mailed m you: ❑ Monthly ❑ Quarterly If you do not select either of those options, interest will automatically be credited to your CD balance quarterly. ❑ Jumbo CD: Term 14 Days — 365 Days (365/360 Method) You may have interest credited to your Seafirst checking or savings account or request that a cashier's check be mailed to you: ❑ Monthly ❑ Quarterly ❑ Semi- Annually ❑ At Maturity If you do not select any of those options, interest will automatically be credited to your CD balance at maturity. Jumbo CD: Term 366 Days — No Maximum (365/360 Method) SIMPLE INTEREST You may have interest credited to your Bank checking or savings account or request IhaL a cashiers check be mailed to you: ❑ Monthly ❑ Quarterly ❑ Semi- Annually If you do not select any of those options, interest will automatically be credited to your CD balance semi - annually. COMPOUND INTEREST ❑ Interest will be credited to yore CD Balance semi- annually. Variable Rate CDs You have purchased a variable rate CD. The interest rate on your CD is -% with an annual percentage yield of %. The annual percentage yield assumes interest remains on deposit until maturity. A withdrawal will reduce earnings. Your interest rate and annual percentage yield may change. An explanation of the determination of the interest rate and the frequency of interest rate changes can be found in the deposit agreement which you will receive with this receipt. ❑ Peak: Term 1 Year (365/365 1366 days in a leap year] Method) You may have interest credited to your Seafirst checking or savings account or request that a cashier's check be mailed to you: ❑ Monthly ❑ Quarterly If you do not select either of those options, interest will automatically be credited to your CD balance quarterly. ❑ Guaranteed Growth: Term 18 Months (365/365 1366 days in a leap year] Method) You may have interest credited to your Seafirst checking or savings account or request that a cashier's check be mailed to you: ❑ Monthly ❑ Quarterly If you do not select either of those options, interest will automatically be credited to your CD balance quarterly. Interest Crediting Method rJ Credit to checking account number F1 Credit to savings account number _ ❑ Cashiers check. Method of Payment Charge ® Checking 72�Q3__.._ Savings Signatures IL( Tltanh you for investing with Seafirst a