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HomeMy WebLinkAboutC-5264 - Construction Completion Agreement Regarding 409 Morning Star LaneJ AMENDMENT NO. ONE TO CONSTRUCTION COMPLETION AGREEMENT �j REGARDING 409 MORNING STAR LANE THIS AMENDMENT NO. ONE TO CONSTRUCTION COMPLETION f AGREEMENT ( "Amendment No. One ") is entered this 18th day of July, 2013 ( "Effective Date") between OMMID, LLC, a California limited liability company, by and through Bahman Bakhtar, as Managing Member of OMMID (collectively "OMMID "), on the one hand, and the City of Newport Beach, a California municipal corporation and charter city ( "City "), on the other, with respect to the following facts. RECITALS: A. On October 19, 2013, the Parties executed the Construction Completion Agreement Regarding 409 Morning Star Lane ( "Agreement"). B. OMMID agreed to complete the Project at the Property by July 18, 2013 Due to unforeseen circumstances, OMMID requires an extension to the deadline for completion of the Project. C. The Parties desire to enter this Amendment No. One to the Agreement to extend the completion date for the Project by 75 days. D. City and OMMID mutually desire to amend the Agreement, as provided NOW, THEREFORE, it is mutually agreed by and between the undersigned Parties as follows: 1. Section 2(i) of the Agreement is hereby amended in its entirety and replaced with the following: "i. Final inspection shall be completed and signed -off on within 344 calendar days from the date of issuance of the new Building and Dock Permits or one year from the date of execution of the Agreement, whichever is earlier." 2. INTEGRATED CONTRACT Except as expressly modified herein, all other provisions, terms, and covenants set forth in the Agreement shall remain unchanged and shall be in full force and effect. [SIGNATURES ON NEXT PAGE] IN WITNESS WHEREOF, the parties have caused this Amendment No. One to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: `%//D% By: Aaro". Harp City Attorney ATTEST: Date: By: 41'�' - M, Leilani I. Brown City Clerk ®`' Po RrN% CITY OF NEWPORT BEACH, a California municipal corporation Dater "1 tti By: Dave iff City Manager OMMID, LLC, a California limited liability company Date: Ba man Bakhtar, Managing Member of OMMID, LLC Not Personally [END OF SIGNATURES] OMMID LLC 3843 S. Bristol # 180 Santa Ana, CA. City of Newport Beach Building Department 100 Civic Center Drive Newport Beach, CA. 92660 Mr. Seimone fur }is, PE, C80 Building Mgr /Chief Building Official CONSTRUCTION COMPLETION AGREEMENT REGARDING 409 MORNING STAR LANE THIS CONSTRUCTION COMPLETION AGREEMENT ( "Agreement') is entered into and between OMMID, LLC, a California limited liability company, by and through be Bahman Bakhtar, as Managing Member of OMMID (collectively "OMMID "), on the one hand, and the City of Newport Beach, a California municipal corporation and charter city, ( "City ") on the other, with respect to the following facts. OMMID and the City may be referred to individually as a "Party ", or collectively as the "Parties" in light of the following: RECITALS: A. OMMID is the lawful owner of the property located at 409 Morning Star Lane, Newport Beach, California (the "Property "). B. On May 5, 2006, OMMID submitted construction plans for a plan check by the City for addition and remodel of an existing single - family dwelling (the 'Project ") to be located on the Property. C. The Project was assigned Plan Check No. 1120 -2006 by the City and was reviewed by the City under the then applicable provisions of the Newport Beach Municipal Code ( "NBMC "). D. On March 9, 2007, the City issued Building Permit No. 82006 -1221, to OMMID for construction of the Project. E. On November 19, 2008, Building Permit No. 82006 -1221 expired. F. On January 16, 2007, OMMID submitted construction plans for plan check by the City for a patio cover located on the Property and is hereby included as part of the Project. G. The Project was assigned Plan Check No. 0090 -2007 by the City and was reviewed by the City under the then applicable provisions of the NBMC. H. On June 13, 2007, the City issued Building Permit No. X2007 -0095, to OMMID for construction of the Project. I. On November 19, 2008, Building Permit No. X2007 -0095 expired. J. On March 3, 2009, OMMID submitted construction plans for plan check by the City for an addition, remodel, and patio for the existing single - family dwelling to be located on the Property and is hereby included as part of the Project. K. The Project was assigned Plan Check No. 0334 -2009 by the City and reviewed by the City under the then applicable provisions of the NBMC. L. On July 10, 2009, the City issued Building Permit No. X2009 -0420 to OMMID for construction of the Project. M. On February 26, 2010 Building Permit No. X2009 -0420 expired. N. On March 20, 2009, OMMID submitted construction plans for plan check by the City for a new float, gangway and decking to be located on the Property and is hereby included as part of the Project. O. The Project was assigned Plan Check No. 0392 -2009 by the City and reviewed by the City under the then applicable provisions of the NBMC. P. On June 26, 2009, the City issued Building Permit No. M2009 -0016 to OMMID for construction of the Project. Q. On February 26, 2010, Building Permit No. M2009 -0016 expired. R. On April 19, 2010, OMMID submitted construction plans for the Project for plan check by the City to replace Building Permit No. X2009 -0420. S. On June 15, 2010, the City issued Building Permit No. X2010 -0859. T. On December 29, 2010, Building Permit No. X2010 -0859 expired. U. On November 10, 2009, OMMID submitted construction plans for plan check by the City for a new patio cover on the Property and is hereby included as part of the Project. V. The Project was assigned Plan Check No. 1751 -2009 by the City and was reviewed by the City under the then applicable provisions of the NBMC. W. On December 15, 2009, the City issued Building Permit No. X2009 -2174 to OMMID for construction of the Project. X. On July 23, 2010, Building Permit No. X2009 -2174 expired. Y. On February 1, 2011, Building Permit No. X2011 -0256 was issued to replace Building Permit No. X2009 -2174. Z. On August 7, 2011 Building Permit No. X2011 -0256 expired. AA. On November 22, 2011, OMMID submitted construction plans for plan check by the City for a new fire sprinkler system on the Property and is hereby included as part of the Project. 2 BB. The Project was assigned Plan Check No. 2249 -2011 by the City and was reviewed by the City under the then applicable provisions of the NBMC. CC. On November 30, 2011, the City issued Building Permit No. F2011 -0496 to OMMID for construction of the Project. DD. As of the date of execution of this Agreement, the Project remains in a partial state of construction and is incomplete. EE. Based upon the expiration of City issued permits and approvals for the Project, OMMID would now be required to submit new plans for the Project to the City for plan check review. These new plans would have to comply with the current requirements of the NBMC. Furthermore, OMMID would be required to pay the City's current adopted fees for all plan check and permits in order to complete the Project. FF.OMMID has submitted to the City a proposed timeframe for the completion of all construction activity required by the Project. A true and correct copy of this submission by OMMID is attached hereto as Exhibit A, and incorporated herein by reference. GG. OMMID contends that most of the delays in completing the Project have been caused by reasons beyond the control of both OMMID and the City. NOW, THEREFORE, the Parties covenant and agree as follows: 1. The Parties acknowledge and agree that the above Recitals are true and correct and are hereby incorporated by reference into this Agreement. 2. OMMID agrees to complete the Project at the Property according to the following schedule: a. The Project shall pass the exterior sheer building inspection within 30 calendar days of City issuing new Building Permits; b. The Project shall pass the roof sheeting building inspection within 14 calendar days after sign -off of the exterior sheer building inspection; c. The Project shall pass the exterior wrap building inspection within 30 calendar days after the sign -off of the roof sheeting building inspection; d. The Project shall pass the rough mechanical, electrical, and plumbing building inspection within 30 calendar days after sign -off of the roof sheeting building inspection; 3 e. The Project shall pass the complete framing building inspection within 30 calendar days after the sign -off of the roof sheeting inspection; f. The Project shall pass the insulation building inspection within 30 calendar days following sign -off of the complete framing building inspection; g. The Project shall pass the drywall building inspection within 45 calendar days following sign -off of the insulation building inspection; h. The Project shall pass the exterior lathe building inspection within 60 calendar days following sign -off of the drywall building inspection; and i. Final inspection shall be completed and signed -off on within 269 calendar days from the date of issuance of the new Building and Dock Permits or one year from the date of execution of this Agreement, whichever is earlier. 3. Prior to any work commencing, OMMID shall provide the City with a structural engineers report by the engineer of record certifying that all lumber presently installed on the Project, not limited to structural members and sheeting are in good condition, have not delaminated, there is no dry rot present, no signs of mold, and able to provide the required strength as required by the NBMC. 4. City agrees that, in exchange for OMMID completing the Project according to the schedule set forth in section 2 above, City will not require OMMID to submit new plans conforming to the current requirements of the NBMC and pay new permit and plan check fees for the Project, and will issue new Building and Dock Permits to OMMID for the Project. 5. OMMID acknowledges and agrees that should OMMID not have the building inspection signed -off on and approved by the City for any of the activities and associated deadlines indicated in section 2(a — i) above, unless such delay is caused by acts of God, all permits for the Project at the Property shall be deemed revoked by the City. The Project will then be subject to a Stop Work Order issued by the City, and OMMID will be required to submit to the City new plans for the Project which conforms to the then applicable NBMC and pay all required plan check and permit fees to the City. 6. No waiver of any Party of any breach of any term or provision of this Agreement shall be construed to be, nor be, a waiver of any preceding, concurrent or succeeding breach of the same, or any other term or provision hereof. No waiver shall be binding unless in writing and signed by the Party to be charged or held bound. 7. This Agreement may be executed as one or more counterparts, and each such counterpart shall be deemed an original as to the Party to be charged. 0 8. Each Party and representative for each Party to this Agreement has reviewed this Agreement, and accordingly, the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting parties will not be employed in any interpretation of this Agreement. 9. This Agreement constitutes a single, integrated contract expressing the entire agreement of the Parties hereto. There are no other agreements, written or oral, express or implied between the Parties hereto, concerning the subject matter hereof, except the agreements set forth herein. The Recitals, which the Parties agree are true and correct, shall be deemed an integral part of this Agreement. This Agreement shall supersede any and all prior agreements, either written or oral, express or implied, between the Parties concerning the subject matter hereof. 10.OMMID acknowledges that it has carefully read and reviewed this Agreement and has been allowed ample time to seek independent legal counsel of its choosing or has obtained legal counsel to advise fully of the legal and binding effect of its terms. OMMID acknowledges that the only promises made to induce it to sign this Agreement are those stated herein. Having been fully advised and informed, OMMID voluntarily enters into this Agreement, including the waiver of rights covered by this Agreement. 11.OMMID hereby covenants not to sue or initiate against City any action or proceeding or to participate in same, individually, or as a member of a class, under any policy, contract, law or regulation, federal, state or local, pertaining in any manner whatsoever to the above Recitals, pursuant to any rights OMMID may have under any policy, or local, state or federal statute, law, or regulation. 12. All Parties acknowledge that they are competent to sign this Agreement, and they do so voluntarily. All Parties to this Agreement further acknowledge that they have had an opportunity to review this Agreement prior to executing it and have had an opportunity to, and did, consult legal counsel of their own choosing prior to executing this Agreement regarding the terms of this Agreement and whether or not to execute this Agreement. [SIGNATURES ON FOLLOWING PAGE] 5 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. OMMID, LLC, a California limited liability company: Bahman Bakhtar, Managing Member of OMMID, LLC Not Personally CITY OF NEWPORT BEACH, A California municipal corporation DATE: Dave iff, City Manager ATTEST: DATE: 10' iri. Z 4jjl� , N-N� eilani I. Brown, City Clerk N DATE: 10/08/2012 APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY DATE: f� A66 . Harp, City Attorney