HomeMy WebLinkAboutC-8809-1 - Subdivision Agreement for Tract No. 19121LAW
SUBDIVISION AGREEMENT BY AND BETWEEN
THE CITY OF NEWPORT BEACH AND
BACK BAY BUNGALOW L.L.C. FOR TRACT NO. 18121
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THIS AGREEMENT ("Agreement") is entered into this � day of
2021, by and between the CITY OF NEWPORT BEACH, a municipal corporation and
charter city of the State of California, hereinafter referred to as "CITY," and BACK BAY
BUNGAOW L.L.C., a California limited liability company, hereafter referred to as
"SUBDIVIDER."
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WHEREAS, SUBDIVIDER is the owner of a tract of land in CITY, which it is
seeking to subdivide into lots and to make certain private and public improvements, and
is about to file with CITY a map of the tract of land known as Tract No. 18121 ("Tract");
WHEREAS, as a condition of the approval of and prior to the recordation of this
subdivision map for the Tract, SUBDIVIDER is required to complete street (including
street, curb and gutter, sidewalk, drive approach and parkway culvert), water, and sewer
improvements (collectively, "Improvements") as shown on public improvement plans for
Tract 18121 dated September 29, 2021 ("Improvement Plans"), and to perform certain
other improvements in the subdivision; and
WHEREAS, SUBDIVIDER desires to enter into an agreement with CITY to delay
performance of certain portions of the work; to agree to perform this work as herein
provided; and to execute and deliver to CITY bonds for the faithful performance of this
Agreement, for the payment of all labor and material in connection therewith, and for the
guarantee and warranty of the work for a period of one (1) year following completion and
acceptance thereof against any defect in work or labor done, or defective materials
furnished, and subdivision monumentation, as required by Sections 66499 through
66499.10 of the California Government Code and Section 19.36.030 (Improvement
Security (66499 et seq.)) of the Newport Beach Municipal Code.
NOW, THEREFORE, in consideration of the promises and agreements of the
parties as herein set forth, the parties agree as follows:
1. GENERAL IMPROVEMENTS
SUBDIVIDER hereby agrees to do, perform, and pay for all of the work for the
Improvements as shown on the Improvement Plans for said Tract as required by the
conditions of approval of the subdivision map for the Tract ("Map") which are not
completed at the time of the recordation thereof. SUBDIVIDER also agrees to pay all
engineering costs and any other deposits, fees, or conditions associated with the Tract
and with the Improvements as required by CITY ordinance or resolution and as may be
required by the City Engineer. All of the work for the Improvements ("Work") shall be
done and performed in accordance with the Improvement Plans, specifications, and
profiles which have been approved by the City Engineer and filed in the office of the City
Engineer. All of the Work shall be done at the sole cost and expense of SUBDIVIDER.
All of the Work shall be completed on or before three (3) years from the date hereof,
unless the conditions of approval of the Map require an earlier completion date. All labor
and material costs and expenses for the Work shall be paid solely by SUBDIVIDER. CITY
may withhold all occupancy permits until completion of the Improvements.
2. STREET IMPROVEMENTS
SUBDIVIDER agrees to complete any and all street improvements, including
perimeter sidewalks, medians, and landscaping required by the conditions of approval of
the Map, prior to release or connection of utilities for occupancy for any lot in the Tract.
3. GUARANTEE
SUBDIVIDER shall guarantee all Work and material required to fulfill its obligations
as stated herein for a period of one (1) year following the date of the City Council's
acceptance of same.
4. IMPROVEMENT PLAN WARRANTY
SUBDIVIDER warrants the Improvement Plans, specifications, and profiles which
have been approved by the City Engineer and filed in the office of the City Engineer are
adequate to accomplish the Work as promised herein and as required by the conditions
of approval of the Map. If at any time before the City Council accepts the Work as
complete or during the one (1) year guarantee period in Section 3 hereof, the
Improvement Plans, specifications, and profiles which have been approved by the City
Engineer and filed in the office of the City Engineer prove to be inadequate in any respect,
SUBDIVIDER shall make whatever changes, at its own cost and expense, as are
necessary to accomplish the Work as promised.
5. NO WAIVER BY CITY
Inspection of the Work and/or materials for the Improvements, or approval of
Work and/or materials for the Improvements, or any statement by any officer, agent
or employee of CITY indicating the Work or any part thereof complies with the
requirements of this Agreement, or acceptance of the whole or any part of the Work
and/or materials for the Improvements, or payments therefor, or any combination of all
of these acts, shall not relieve SUBDIVIDER of its obligations under this Agreement;
nor shall CITY be stopped from bringing any action for damages arising from
SUBDIVIDER'S failure to comply with any of the terms and conditions hereof.
6. COSTS
SUBDIVIDER shall, at its own cost and expense, pay when due, all the costs of
the Work, including inspections thereof and relocation of existing utilities required
thereby.
7. SURVEYS
SUBDIVIDER shall set and establish survey monuments in accordance with
the filed Map and to the satisfaction of CITY before acceptance of any Work by the
CITY.
8. IMPROVEMENT SECURITY
Upon executing this Agreement, SUBDIVIDER shall, pursuant to California
Government Code Section 66499, and the Newport Beach Zoning and Subdivision
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Ordinance, provide as security to CITY:
PRIVATE STREET & STORM DRAIN IMPROVEMENTS
A. Faithful Performance: For performance security, in the
amount of Forty Five Thousand One Hundred Seventy Eight
Dollars and 00/100 ($45,178.00), which is one hundred
percent (100%) of the estimated cost of the work.
SUBDIVIDER shall present such additional security in the form
of:
Cash, certified check, or cashier's check.
X Acceptable corporate surety bond.
Acceptable irrevocable letter of credit.
With this security, SUBDIVIDER guarantees performance under this
Agreement and maintenance of the Work for one (1) year after its
completion and acceptance against any defective workmanship or
materials or unsatisfactory performance.
B. For Labor and Material: Security in the amount of Forty Five
Thousand One Hundred Seventy Eight Dollars and 00/100
($45,178.00), which is one hundred percent (100%) of the
estimated cost of the work. SUBDIVIDER shall present such
security in the form of:
Cash, certified check, or cashier's check.
X Acceptable corporate surety bond.
Acceptable irrevocable letter of credit.
With this security, SUBDIVIDER guarantees payment to the
contractor, to its subcontractors, and to persons renting equipment
or furnishing labor or materials for the Improvements or to
SUBDIVIDER.
C. Warranty: Security in the amount of Four Thousand Five
Hundred Eighteen Dollars and 00/100 ($4,518.00), which is
ten percent (10%) of the estimated cost of the work.
SUBDIVIDER shall present such security in the form of:
Cash, certified check, or cashier's check.
X Acceptable corporate surety bond.
Acceptable irrevocable letter of credit.
With this security, SUBDIVIDER provides a one (1) year guarantee
period on all work and materials. Such Warranty Bond shall be
released one (1) year after acceptance of all Improvements.
BACK BAY BUNGALOW L.L.C. Page 3
FINAL MONUMENTATION
A. For Subdivision Monumentation: Security in the amount of Two
Thousand Dollars and 00/100 ($2,000.00), which is one
hundred percent (100%) of the estimated cost of this work.
SUBDIVIDER shall present such security in the form of:
Cash, certified check, or cashier's check.
X Acceptable corporate surety bond.
Acceptable irrevocable letter of credit.
With this security, SUBDIVIDER guarantees setting of such
monuments and guarantees payment to the Engineer or Surveyor for
setting such monuments in the Tract, and as a prerequisite to the
approval of the final Map.
SUBDIVIDER may, during the term of this Agreement, substitute improvement
security provided that the substituted security is approved in advance in writing by the
City Attorney, however, any bond or other security given in satisfaction of this condition
shall remain in full force and effect until one (1) year after the Improvements are
accepted in writing by CITY. SUBDIVIDER may be required by CITY to provide a
substitute security at any time until one (1) year after the Improvements are accepted
in writing by CITY.
9. INDEMNIFICATION. DEFENSE. HOLD HARMLESS
City and all officers, employees, and representatives thereof shall not be
responsible in any manner for any loss or damage to any of the materials or other things
used or employed in performing the Work or for injury to or death of any person as a result
of SUBDIVIDER's performance of the Work required hereunder; or for damage to
property from any cause arising from the performance of the Work by SUBDIVIDER, or
its subcontractors, or its workers, or anyone employed by either of them.
SUBDIVIDER shall be responsible for any liability imposed by law and for injuries
to or death of any person or damage to property resulting from defects, obstructions, or
from any cause arising from SUBDIVIDER's performance of the Work, performance of
the Work by any contractor, subcontractor, or agent of SUBDIVIDER, or a supplier
providing materials for the Work on behalf of the SUBDIVIDER.
To the fullest extent permitted by law, SUBDIVIDER shall indemnify, defend and
hold harmless City, its City Council, boards, committees and commissions, officers,
agents, volunteers, and employees (collectively, the "Indemnified Parties") from and
against any and all claims (including, without limitation, claims for bodily injury, death or
damage to property), demands, obligations, damages, actions, causes of action, suits,
losses, judgments, fines, penalties, liabilities, costs and expenses (including, without
limitation, attorneys' fees, disbursements and court costs) of every kind and nature
whatsoever (individually, a Claim; collectively, "Claims"), which may arise from or in any
manner relate (directly or indirectly) to any breach of the terms and conditions of this
Agreement by or on behalf of SUBDIVIDER, any Work performed for the Improvements
including, without limitation, defects in workmanship or materials or SUBDIVIDER's
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presence or activities conducted on the Work (including the negligent and/or willful acts,
errors and/or omissions of SUBDIVIDER, its principals, officers, agents, employees,
vendors, suppliers, consultants, subcontractors, anyone employed directly or indirectly by
any of them or for whose acts they may be liable or any or all of them).
Notwithstanding the foregoing, nothing herein shall be construed to require
SUBDIVIDER to indemnify the Indemnified Parties from any Claim arising from the sole
negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall
be construed as authorizing any award of attorneys' fees in any action on or to enforce
the terms of this Agreement. This indemnity shall apply to all Claims regardless of
whether any insurance policies are applicable. The policy limits do not act as a limitation
upon the amount of indemnification to be provided by SUBDIVIDER.
SUBDIVIDER shall perform all Work in a manner to minimize public inconvenience
and possible hazard, to restore other work areas to their original condition and former
usefulness as soon as possible, and to protect public and private property. SUBDIVIDER
shall be liable for any private or public property damaged during the performance of the
Work by SUBDIVIDER or its agents.
In addition to the other rights of City hereunder, in the event that any Claims are
brought against the CITY as a result of SUBDIVIDER'S breach of the terms and
conditions of this Agreement, any Work performed by or on behalf of SUBDIVIDER, or as
a result of SUBDIVIDER's presence or activities conducted on the Tract, the City, as it
deems necessary and to the extent authorized by law, may retain any security under
Section 8 of this Agreement until disposition of any such Claims.
The rights and obligations set forth in this Section shall survive the termination of
this Agreement.
10. INSURANCE
Any insurance required by the City pursuant to any permit issued to City
including but not limited to, any encroachment permits, shall be obtained by
SUBDIVIDER.
The requirement for carrying the insurance coverage shall not derogate from
SUBDIVIDER'S defense, hold harmless and indemnification obligations as set forth in
Section 9 of this Agreement. CITY or its representatives shall at all times have the
right to demand the original or a copy of the policy of insurance. SUBDIVIDER shall
pay, in prompt and timely manner, the premium on all insurance hereinabove required.
11. NONPERFORMANCE AND COSTS
If SUBDIVIDER fails to complete the Work within the time specified in this
Agreement, or any subsequent extensions, if any, or fails to maintain the Work, CITY may
proceed to complete and/or maintain the Work by contract or otherwise, and
SUBDIVIDER agrees to pay all costs and charges incurred by CITY (including, but not
limited to: engineering, inspection, surveys, contract, overhead, etc.) immediately upon
demand. In such event, the CITY may utilize the security provided under Section 8 to
cover costs and charges incurred by CITY (including, but not limited to: engineering,
BACK BAY BUNGALOW L.L.C. Page 5
inspection, surveys, contract, overhead, etc.) for the Work.
SUBDIVIDER hereby consents to entry on the subdivision property by CITY and
its forces, including subdividers, in the event CITY proceeds to complete and/or maintain
the Work.
Once action is taken by CITY to complete or maintain the Work, in the event that
City does not elect to use the security provided by SUBDIVIDER for the Improvements or
does elect to use such security and such security is insufficient for City to complete or
maintain the Work, SUBDIVIDER agrees to pay all costs incurred by CITY even if
SUBDIVIDER subsequently completes the Work.
12. RECORD MAP
In consideration hereof, CITY agrees that SUBDIVIDER is permitted to file and
record the final Map for the Tract.
13. NOTICES
Any notices, certificates, or other communications hereunder shall be given either
by personal delivery to SUBDIVIDER or to CITY as the situation shall warrant, or by
enclosing the same in a sealed envelope, postage prepaid, and depositing the same in
the United States Postal Service, to the addresses specified below. CITY and
SUBDIVIDER may designate different addresses to which subsequent notices,
certificates or other communications will be sent by notifying the other party via personal
delivery, reputable overnight courier or U.S. certified mail -return receipt requested:
TO CITY:
City of Newport Beach
Attn: Director of Public Works
100 Civic Center Drive
Newport Beach, CA 92660
TO SUBDIVIDER:
BACK BAY BUNGALOW LLC
Attn: Anastasios Nikolaou
Managing Member.
3183-E Airway Avenue
Costa Mesa, CA 92626
14. CONSENT
When CITY'S consent/approval is required under this Agreement, its consent/
approval for one transaction or event shall not be deemed to be a consent/approval to
any subsequent occurrence of the same or any other transaction or event.
15. MODIFICATION
No waiver or modification of any language in this Agreement shall be valid unless
in writing and duly executed by both parties.
16. CITY APPROVALS
The City Manager of the City of Newport Beach is hereby authorized, on behalf of
the CITY, to sign all documents necessary and appropriate to carry out and implement
this Agreement and to administer the CITY's obligations, responsibilities and duties to be
performed under this Agreement.
17. SECTION HEADINGS
The titles, captions, section, paragraph and subject headings, and descriptive
BACK BAY BUNGALOW L.L.C. Page 6
phrases at the beginning of the various sections in this Agreement are merely descriptive
and are included solely for convenience of reference only and are not representative of
matters included or excluded from such provisions, and do not interpret, define, limit,
describe, or construe the intent of the parties or affect the construction or interpretation
of any provision of this Agreement.
18. INTERPRETATION OF THIS AGREEMENT
The language of all parts of this Agreement shall in all cases be construed as a
whole, according to its fair meaning, and not strictly for or against any of the parties. If
any provision of this Agreement is held by an arbitrator or court of competent jurisdiction
to be unenforceable, void, illegal or invalid, such holding shall not invalidate or affect the
remaining covenants and provisions of this Agreement. No covenant or provision shall be
deemed dependent upon any other unless so expressly provided here. As used in this
Agreement, the masculine or neuter gender and singular or plural number shall be
deemed to include the other whenever the context so indicates or requires. Nothing
contained herein shall be construed so as to require the commission of any act contrary
to law, and wherever there is any conflict between any provision contained herein and
any present or future statute, law, ordinance or regulation contrary to which the parties
have no right to contract, then the latter shall prevail, and the provision of this Agreement
which is hereby affected shall be curtailed and limited only to the extent necessary to
bring it within the requirements of the law.
19. DUPLICATE ORIGINAL
The original of this Agreement and one or more copies hereto have been prepared
and signed in counterparts as duplicate originals, each of which so executed shall,
irrespective of the date of its execution and delivery, be deemed an original. Each
duplicate original shall be deemed an original instrument as against any party who has
signed it.
20. IMMIGRATION
SUBDIVIDER shall be responsible for full compliance with the immigration and
naturalization laws of the United States and shall, in particular, comply with the provisions
of the United States Code regarding employment verification.
21. LEGAL SERVICES SUBCONTRACTING PROHIBITED
SUBDIVIDER and CITY agree that CITY is not liable for payment of any
subcontractor work involving legal services, and that such legal services are expressly
outside the scope of services contemplated hereunder. SUBDIVIDER understands that
pursuant to Newport Beach City Charter Section 602, the City Attorney is the exclusive
legal counsel for CITY; and CITY shall not be liable for payment of any legal services
expenses incurred by SUBDIVIDER.
22. NO ATTORNEY'S FEES
In the event suit is brought by either party to construe, interpret and/or enforce the
terms and/or provisions of this Agreement or to secure the performance hereof, each
party shall bear its own attorney's fees, such that the prevailing party shall not be entitled
to recover its attorney's fees from the nonprevailing party.
BACK BAY BUNGALOW L.L.C. Page 7
23. SURVIVAL
Terms and conditions of this Agreement, which by their sense and context survive
the expiration or termination of this Agreement shall so survive.
24. GOVERNING LAW
This Agreement shall be governed and construed in accordance with the laws of
the State of California.
25. SIGNATORIES
Each undersigned represents and warrants that its signature herein below has the
power, authority and right to bind their respective parties to each of the terms of this
Agreement, and shall indemnify CITY fully for any injuries or damages to CITY in the
event that such authority or power is not, in fact, held by the signatory or is withdrawn.
26. ENTIRETY
The parties acknowledge and agree that they are entering into this Agreement
freely and voluntarily following extensive arm's length negotiations, and that each has had
the opportunity to consult with legal counsel prior to executing this Agreement. The
parties also acknowledge and agree that no representations, inducements, promises,
agreements or warranties, oral or otherwise, have been made by that party or anyone
acting on that party's behalf, which are not embodied in this Agreement, and that that
party has not executed this Agreement in reliance on any representation, inducement,
promise, agreement, warranty, fact or circumstance not expressly set forth in this
Agreement. This Agreement contains the entire agreement between the parties
respecting the subject matter of this Agreement and supersedes all prior understandings
and agreements whether oral or in writing between the parties respecting the subject
matter hereof.
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BACK BAY BUNGALOW L.L.C. Page 8
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by and through their authorized offices the day, month and year first above
written.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date: /oZ/3'�Z/
CITY OF NEWPORT BEACH,
a California municipal corporation
Date: f f
B By.
ron C. H arK Mew iG - %A -.\ Bra ve
City Attorney May
ATTEST -SUBDIVIDER: BACK BAY BUNGALOW
Date: A /. �A] L.L.C., a California limited liability
company
Date: to it -1
2-I
By: 46vd-
By: d �---
Leilani I. Brown Anastasios Nikolaou
City Clerk Managing Member
BACK BAY BUNGALOW L.L.C. Page 9
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual who
signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or validity
of that document.
State of California
County of 6/A —)ss. IN
On ( �'� lLi 20 2l before me,
Notary Public, personally appeared who
proved to me on the basis of satisfactory evidence to be the persono whose name(s) is/aFe
subscribed to the within instrument and acknowledged to me that he/s y -executed the same in
his/hZY/their authorized capacity�ies), and that by his/hhe#Hoteir signatures(6) on the instrument the
persona), or the entity upon behalf of which the person'(, acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal
C C C_
Signature
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual who
signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or validity
of that document.
State of California
County of ) ss.
On 20 before me,
Notary Public, personally appeared
proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signatures(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature
(seal)
BACK BAY BUNGALOW L.L.C. Page 10
CHARLIE CHO
ati
YF ;fir
Notary Public - California
Orange County
Commission
My
# 2255353
Comm. Expires Sep 18, 2022
(seal)
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual who
signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or validity
of that document.
State of California
County of ) ss.
On 20 before me,
Notary Public, personally appeared
proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signatures(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature
(seal)
BACK BAY BUNGALOW L.L.C. Page 10