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
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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