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
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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//
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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
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By:
Mayor
PERMITTEE
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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
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The Private Bank
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