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HomeMy WebLinkAbout10 - 3619 Ocean Boulevard Encroachment PermitOctober 25, 1999 CITY COUNCIL AGENDA ITEM NO. 10 TO: Mayor And Members Of The City Council FROM: Public Works Department SUBJECT: AGREEMENT FOR CONSTRUCTION OF IMPROVEMENTS AT 3619 OCEAN BOULEVARD (ENCROACHMENT PERMIT NO. 99 -257) RECOMMENDATION: Approve an agreement guaranteeing completion of the public improvements required with Variance No. 1223 and authorize the Mayor and the City Clerk to execute the agreement. DISCUSSION: On August 6, 1998, the City Council conditionally approved Variance No. 1223. Improvements required with the approval of the variance included the construction of a large retaining wall along the access driveway located within the Ocean Boulevard right -of -way. The conditions of Variance No. 1223 require that the owner provide a surety guaranteeing. completion of the retaining wall prior to obtaining any grading or building permits. The owner has executed an appropriate agreement and provided an accompanying security in the form of a Bank Letter. The agreement establishes the developer's obligation to complete the public improvement construction. The Bank Letter sets aside $50,000 as a faithful performance surety and a labor and materials surety, which is 50% of the estimated cost of the improvements. Ct is a for reference. Don Webb Public Works Director By: /04_w4p;;. Ri�chal "L. Hoffstadt, P.E. Development Engineer Attachments: Site Plan Agreement and Bank Letter f: Ws= NpbwNshared%coundl1fy9940bdober- 2513619 ocean blvd - var 1223.doo �b b Sti -,Q c m 0 P CD 0 0 m c m U 4 0 0 F- I Al Li AGREEMENT FOR CONSTRUCTION OF IMPROV -WENTS 99.0 -?s7 (ENCROACHMENT PERMIT NO. —) THIS AG EMENT, made and entered into this ZL day of OCA9Br2 , 199T by and between 6 ose business address is OC Cv,Y :P" .v . and if an individual, whose residence address is m i i//FL� .c'T YS F2 hereinafter referred to as " PERMITTEE" and the CITY OF NE PORT 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 an encroachment permit for the use and/or development of land within the City of Newport Beach to be known as Encroachment Permit No. Vq:g24 7 (hereinafter "Permit ") pursuant to provisions of the CITY's ordinances and regulations; and WHEREAS, Permit has been approved, subject to certain requirements and conditions of approval, which are incorporated into this Agreement by reference ( "Permit Conditions"); and WHEREAS, in consideration of approval of the Permit by the CITY and in compliance with the conditions of approval, PERMITTEE desires to enter into this Agreement, whereby PERMITTEE promises to install and complete, at PERMITTEE'S own expense, street and other public improvement work required by CITY in connection with the proposed development, (the "Improvements ") which Improvements, without limitation by enumeration consists of: 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 shell be prepared by PERMITTEE and approved by the City Engineer, (the "Improvement Plans "). All references in this Agreement to the Improvement Plans shall include reference to any specifications for the Improvements as approved by the City Engineer; and WHEREAS, PERMITTEE recognizes that by approval of the Permit CITY has conferred substantial rights upon PERMITTEE. As a result, CITY will be damaged to the extent of the cost of installation of the Improvements by PERMITTEE's failure to perform its obligations under this Agreement, including, but not limited to, PERMITTEE's obligation to commence construction of the improvements by the time established in this Agreement. CITY shall be entitled to all remedies available to it pursuant to this Agreement and law; and NOW, THEREFORE, in consideration of their mutual promises, the Parties hereto agree as 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 Permit, plus any additional improvements required by the Planning Commission or City Council as a condition of approving the Permit. PERMITTEE shall acquire and dedicate, or pay the cost of acquisition by CITY, of all rightsof -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 off site 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. anitt// L 3. PERMITTEE agrees to complete the Improvements within a period of ES months I= 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. S. It PERMITTEE shall fail to complete the Improvements within the period set out above, or tails 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 FIFTY THOUSAND dollars ($50,000) to guarantee the performance of this Agreement. The PERMITTEE shall provide security in the amount of FIFTY THOUSAND dollars ($50,000) to guarantee payment to any contractors, subcontractors, and persons iumishing labor, materials and equipment to them for the performance of the work herein described. Said security shall be in the form of (Bond NosJCertificate of Deposit No's. 1. 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 sate 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. lndemnhvMold 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 tar 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 akemative safe and feasible design. After acceptance of the Improvements, the PERMITTEE shall remain obligated to eliminate any defect in design or dangerous condition caused by the design or construction defect, however PERMITTEE shall not be responsible for routine maintenance. It is the intent of. this section that PERMITTEE shall be responsible for all Ilabll'dy for design and construction of the Improvements installed or work done pursuant to this Agreement and that CITY shall not be Treble 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. 13. If the PERMITTEE and the surety fall 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 attorneys 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 ATTEST: City Clerk APPROVED AS TO FORM: City Attorney Amer 0 By: Mayor PERMITTEE ,- i Northern Trust Bank 0 620 Newpon Center Drive. Suite 200. Newport Beach. California 92660 (94()) 1l7-.i5(X) 999 City of Newport Beach P.O. Box 1768 Newport Beach, CA 92658 -8915 ATTN: Public Works Department RE: Proposed Retaining Wall Construction 3619 Ocean Blvd., Corona del Mar, California Spataro Family Trust, Peter A. Spataro, Trustee and Dorothy R. Spataro, Trustee, Owner Gentlemen: On behalf of our client, Spataro Family Trout, Northern Trust Bank of California N. A. has set aside $50,000.00 to finance_the construction of certain property as required by the Newport Beach Municipal Code for the labor and materials surety. The $50,000.00 shall be held until the City Council accepts the improvements and releases the surety. In the event that Spataro Family Trust fails to complete and/or pay, for the property improvements as required, all funds shall be immediately available to the City of Newport Beach to complete and pay for the cost of said improvements. THIS IS AN IRREVOCABLE COMMITMENT TO FUNDS THAT ARE NOT SUBJECT TO RECALL. Accepted and Agreed to: Northern Trust Bank of California N.A. By, c, Barbara C. Kenady Vice President Accepted and Agreed to: City of Newport Beach Accepted and Agreed to: Spataro Family Taut By: eter A. Spataro rtutee Owner By: QmA f Dorothy R. Spataro. 'Trustee Owner By: Please return one executed copy to Northern Trust Bank; 620 Newport Center Drive, Suite 200, Newport Beach, California 92660 (949) 717 -5541 FAX (949) 640 -2382 t: \banking \tcl\spataro 1007.doc The Private Bank \...dwn rma A ,. a xlx•11} .�u,kvl "hwu0ar „a \..,tl4vn l ma Cr7w°mv�. ll,v'ap,.. \I ry�ihv PnlC fyud l I..% ... p lwpkr ® 0