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HomeMy WebLinkAboutC-9208-5 - Sound Wall Construction and Encroachment Agreement (for 1724 Port Manleigh Circle)RECORDING REQUESTED BY AND !J WHEN RECORDED RETURN TO: City Clerk v City of Newport Beach Post Office Box 1768 3300 Newport Boulevard Newport Beach, CA 92659-1768 Recoraea in the county of orange, catlf'ornla Gary L. Granville, 1111111111111111111 Jill Clerk,RecoNoeFee 005 26017446 269980826673 1;24pm 12/03/98 59 Al2 11 6.00 30.00 0.00 0.00 0.00 33.00 EXE;NIPT RECORDING REQUEST PER SPACE ABOVE THIS LINE FOR RECORDER'S USE GOVERNMENT CODE 6103 SOUND WALL CONSTRUCTION AND ENCROACHMENT AGREEMNT E P�►sC` �"f; . THIS AGREEMENT, entered into this 3 day of N-e�t, 1998, by and between the CITY OF NEWPORT BEACH, a municipal corporation (hereinafter referred to as "CITY"), and MICHEL SAWAN (hereinafter referred to as "OWNER") is made with reference to the following: RECITALS: A. CITY is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and Charter of the City. B. OWNER owns and has possession of the real property situated within the boundaries of CITY and commonly identified as 1724 Port Manleigh Circle. The legal description of said property is Lot 55 of Tract No. 6938, as shown on a map recorded in Book 280, Pages 5 through 8 inclusively of Miscellaneous Maps in the office of the County Recorder of Orange County, California. C. CITY is proceeding with a project to widen and reconstruct MacArthur Boulevard from Pacific Coast Highway to Ford Road (hereinafter referred to as "PROJECT"). The PROJECT is to be accomplished in two construction segments: Segment 1 extends from Pacific Coast Highway to approximately 1,000 feet northerly of San Joaquin Hills Road and Segment 2 extends from approximately 1,000 feet northerly of San Joaquin Hills Road to Ford Road. D. Final Environmental Impact Report No. 150 for the PROJECT was certified by CITY on April 13, 1992. Final EIR No. 150 requires that CITY mitigate excessive roadway noise levels at certain designated locations by the construction of sound attenuation walls. E. OWNER'S real property is one of the designated locations in Segment 2 of the PROJECT where sound mitigation is to be provided. F. CITY is prepared to have a private contractor construct the sound wall on property owned by CITY and located adjacent to OWNER'S real property at no cost to OWNER. Sound Wall Agreement/sound-5.agr G. OWNER is prepared to accept the completed sound wall for maintenance, repair, and preservation purposes. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: Section I. CONSTRUCTION OF SOUND ATTENUATION WALL AND RELATED IMPROVEMENTS I . It is mutually agreed that the improvements covered by this Sound Wall Construction and Encroachment Agreement may include any or all of the following described items: a. Minimum six-foot high sound attenuation wall constructed of solid masonry or a combination of solid masonry for the lower portion and transparent glass for the upper portion. b. Side yard fence or wall extensions to join the minimum six-foot high sound attenuation wall. C. Typical background improvements not requiring building permits such as patio slabs, wooden decks, low planter walls, irrigation systems, decorative lighting, and plantings (shrubs, ground cover, and turf) placed in the three-foot wide strip situated between the lot line and the sound attenuation wall. 2. OWNER hereby grants to CITY and its contractors and professional consultants permission to enter onto OWNER'S property as necessary to perform the sound wall construction work in substantial conformance with the plans (City of Newport Beach Drawing No. M-5329-S consisting of five sheets) and specifications for Contract No. 2825 (K) on file in the CITY. 3. This Sound Wall Construction and Encroachment Agreement shall become effective upon execution by both CITY and OWNER and shall continue until terminated in accordance with this agreement, except that the right -of -entry permission provided herein shall terminate upon satisfactory completion of the sound wall construction and expiration of the one year warranty period required by the construction contract specifications. 4. Rights granted and obligations established under this Sound Wall Construction and Encroachment Agreement may not be modified or terminated except by mutual agreement of the parties. Any such modification or termination shall be in the form of a written amendment which shall be executed by both CITY and OWNER. 5. OWNER and CITY further agree as follows: a. CITY shall construct the sound attenuation walls as mitigation for increased traffic noise identified in the Environmental Impact Report (No. 150) for the MacArthur Boulevard Widening project. Construction of wall improvements shall be in substantial conformance with the plans and specifications for Contract No. 2825 Sound Wall Agreement/sound-5.agr 2 (K) which are on file in the CITY'S Public Works Department. A reduction of Sheet 2 of the plans depicting the relationship between the sound attenuation walls and OWNER'S property is attached hereto as Exhibit "A" and incorporated herein by reference. b. OWNER hereby acknowledges and agrees that construction of the sound attenuation walls in substantial conformance with the plans and specifications for Contract No. 2825 (K) fulfills and satisfies the CITY'S noise mitigation obligations for the MacArthur Boulevard Widening project to the extent such obligations pertain to OWNER's property. C. CITY will submit sound wall plans and specifications to the Newport Hills Community Association for architectural review. d. A building permit for construction of the portion of sound attenuation wall related to OWNER'S individual lot will be issued by CITY'S Building Department. e. CITY'S contractor will remove existing rear yard (tract boundary) walls and fencing, as noted on the plans, exercising care and caution so as to cause minimum disturbance to existing side yard fencing and to existing landscaping and hardscape improvements located on OWNER'S property. f. CITY will pay for all costs associated with the construction of sound attenuation walls in substantial conformance with the plans and specifications for Contract No. 2825 (K). g. Upon satisfactory completion of the sound attenuation wall construction work covered by Contract No. 2825 (K), CITY shall file a Notice of Completion with the Orange County Recorder and establish that there are no outstanding payment claims or mechanics' liens before releasing final payment for the completed contract work. h. OWNER acknowledges and agrees that upon completion of construction by CITY's contractor, OWNER shall be fully responsible and obligated for the maintenance, repair, and preservation of such sound attenuation wall improvements. OWNER'S maintenance, repair, and preservation responsibility shall commence upon recordation of the Notice of Completion for Contract No. 2825 (K). OWNER shall be responsible for any desired extension or adjustment of side yard boundary walls or fences to join the new sound attenuation wall. Similarly, OWNER will be responsible for constructing any "Authorized Improvements" desired in the "Encroachment Area" as defined herein. j. OWNER will pay for all costs associated with "Authorized Improvements" such as side yard wall and fence extensions and adjustments, hardscape replacement and construction, and landscape installation and replacement that may be desired by OWNER. Sound Wall Agree ment/sound-5. agr 3 k. OWNER shall be responsible for repairing or replacing any CITY improvements that may be damaged by OWNER in the course of implementing OWNER'S obligations to maintain, repair, and preserve the sound attenuation wall. Section II: ENCROACHMENT ONTO CITY PROPERTY 1. In consideration for OWNER'S acceptance of the responsibility to maintain, repair, and preserve the segment of sound attenuation wall contiguous to OWNER'S private property, CITY consents to OWNER'S encroachment onto the strip of publicly owned land approximately three (3) feet wide situated between the sound attenuation wall and the common property line (depicted as "Encroachment Area" on Exhibit "A" attached hereto). The CITY shall at all times retain the fee simple ownership interest in the "Encroachment Area" subject to the covenants set forth in the accepted offer of Dedication dated October 24, 1997, and recorded November 5, 1997, in Official Records of the County Recorder of Orange County, California, as Instrument No. 19970560730. OWNER may construct or install non -permanent hardscape or landscape improvements ("Authorized Improvements") within the "Encroachment Area." Permanent structures such as swimming pools, spas, pool and spa equipment with enclosures, and gazebos or other structures are not permissible. 2. In the event either party breaches any material provision of this Sound Wall Construction and Encroachment Agreement, the other party at its option may, in addition to the other legal remedies available to it, terminate this Sound Wall Construction and Encroachment Agreement, and, in the event the breaching party is OWNER, CITY may re-enter upon the three-foot strip of land over which OWNER has been given a right to encroach. Such re- entry may involve removal of all or part of the "Authorized Improvements" installed by OWNER and construction of a replacement sound attenuation wall along the common property line. Termination because of breach shall be upon a minimum of ten (10) days' notice, with the notice of breach specifying the date of termination. 3. OWNER shall defend, indemnify and hold harmless CITY, its City Council, boards and commissions, officers and employees from and against any and all loss, damages, liability, claims, suits, costs and expenses whatsoever, including reasonable attorneys' fees (when outside attorneys are so utilized), regardless of the merit or outcome of any such claim or suit arising from or in any manner connected with the maintenance, repair, and preservation of the sound attenuation wall and incidentally related improvements. 4. CITY shall defend, indemnify and hold harmless OWNER from and against any and all loss, damage, liability, claims, suits, costs and expenses whatsoever, including reasonable attorneys' fees, regardless of the merit or outcome of any such claim or suit arising from or in any manner connected with the design and construction of the sound attenuation wall and any incidentally related work performed under Contract No. 2825 (K). 5. OWNER and CITY agree that this Sound Wall Construction and Encroachment Agreement shall remain in full force and effect from execution thereof; shall run with the land; shall be binding upon the heirs, successors, and assigns of OWNER's interest in the land Sound Wall Agreement/sound-5.agr 4 whether fee simple or otherwise; and shall be recorded in the Office of County Recorder of Orange County, California. CITY shall handle the recordation and will provide a copy of the fully executed and recorded document to OWNER. IN WITNESS WHEREOF, the parties hereto have caused this Sound Wall Construction and Encroachment Agreement to be executed on the day and year first above written. APP OVF,D AS TO FORM: I I City Attorney City Clerk [NOTARY PUBLIC JURATS ATTACHED] CITY OF NEWPORT BEACH a municipal co oration By: '1 , May OWNER(S) MICHEL SAWAN By: Michel Sawan , by his Attorney -In -Fact, Bassim M. Sawan Sound Wall Agreement/sound-5.agr a Ld Z V U �U L N o � uyyw l� y♦ N � O x m w 0 m r U ; N V1 J J O W N~ N o w Z J � � a O D Z W O V 4 V O N � U W� O W 1/i IW- O 1A N N 6 r1 s O a `a!' v o W ti h (1ll r1Nl Z lO O N F Z 9 H U W to • '/ I I I N � s i W 1 0 - o I N I 03SIANI 31VO L6/L SMS AY 03M03H, JURAT State of ss. S County oif'p ? Subscribed and sworn to (or affirmed) before me this � ` day of nn%-,-y s` f; t I , by Date Month Year Name of Signer(s) Name of Signer($) nature of t ry ublic S� WON � �tLKERi� NOTARY PUBLIC STATE OF MARYLAND L' h* Cony ninon Expifes March 1, 2001 OPTIONAL �A Though the information in this section is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. . _ 6 Top of thumb here Top of thumb here Description of Attached Document IJ, SDUAIP 1,/1 Z GC11%i%�{U % Title or Type of Document: tr�lc �?/ f9 C l rnre. JE " X Document Date: 3 Nn� �l Number of Pages: Signer(s) Other Than Named Above: - - ©-1997 National Notary Association • 9350 De Soto Ave. P.O. Box 2402 •Chatsworth, CA 91313-2402 • www.nationainotary.org Prod. No. 5914 Reorder. Call Toll -Free 1-800 876-0827 RECORDING REQUESTED BY Stream & Stream, Inc. AND WHEN RECORDED MAIL TO: 'NAME Stream & Stream, Inc. ' STREET 4201 Brockton Ave. ADDRESS Suite 200 CITY, STATE S LIPCODE Riverside, CA 92501 SPACE ABOVE THIS LINE FOR RECORDER'S USE POWER OF ATTORNEY - GENERAL [includes optional DURABLE POWER OF ATTORNEY] KNOW ALL PERSONS BY THESE PRESENTS: That I, Michel M. Sawan, individually and as Trustee of the Sawan Familv Trust the undersigned (jointly or severally, if more than one) hereby make, constitute and appoint Bassim M. Sawan my true and lawful Attorney for me and in my name, place and stead and for my use and benefit: (a) To ask, demand, sue for, recover, collect and receive each and every sum of money, debt, account, legacy, bequest, interest, dividend, annuity and demand (which now is or hereafter shall become due, owing or payable) belonging to or claimed by me, and to use and take any lawful means for the recovery thereof by legal process or otherwise, and to execute and deliver a satisfaction or release therefor, together with the right and power to compromise or compound any claim or demand; (b) To exercise any or all of the following powers as to real property, any interest therein and/or any building thereon: To contract for, purchase, receive and take possession thereof and of evidence of title thereto; to lease the same for any term or purpose, including leases for business, residence, and oil and/or mineral development; to sell, exchange, grant or convey the same with or without warranty; and to mortgage, transfer in trust, or otherwise encumber or hypothecate the same to secure payment of a negotiable or non-negotiable note or performance of any obligation or agreement; (c) To exercise any or all of the following powers as to all kinds of personal property and goods, wares and merchandise, choses in action and other property in possession or in action: To contract for, buy, sell, exchange, transfer and in any legal manner deal in and with the same, and to mortgage, transfer in trust, or otherwise encumber or hypothecate the same to secure payment of a negotiable or non-negotiable note or performance of any obligation or agreement. (d) To borrow money and to execute and deliver negotiable or non-negotiable notes therefor with or without security; and to loan money and receive negotiable or non-negotiable notes therefor with such security as he;she shall deem proper; (e) To create, amend, supplement and terminate any trust and to instruct and advise the trustee of any trust wherein I am or may be trustor or beneficiary; to represent and vote stock, exercise stock rights, accept and deal with any dividend, distribution or bonus, join in any corporate financing, reorganization, merger, liquidation, consolidation or other action and the extension, compromise, conversion, adjustment, enforcement or foreclosure, singly or in conjunction with others of any corporate stock, bond, note, debenture or other security; to compound, compromise, adjust, settle and satisfy any obligation, secured or unsecured, owing by or to me and to give or accept any property and/or money whether or not equal to or less in value than the amount owing in payment, settlement or satisfaction thereof; (f) To transact business of any kind or class and as my act and deed to sign, execute, acknowledge and deliver any deed, lease, assignment of lease, covenant, indenture, indemnity, agreement, mortgage, deed of trust, assignment of mortgage or of the beneficial interest under deed of trust, extension or renewal of any obligation, subordination or waiver of priority, hypothecation, bottomry, charter -party, bill of lading, bill of sale, bill, bond, note, whether negotiable or non-negotiable, receipt, evidence of debt, full or partial release or satisfaction of mortgage, judgment and other debt, request for partial or full reconveyance of deed of trust and such other instruments in writing or any kind or class as may be necessary or proper in the premises. Page 1 of 2 THIS FORM IS NOT VALID FOR HEALTH CARE DECISIONS (Use Wolcotts Form 1401 for that purpose.) Before you use this form, read It, fill in all blanks, and make whatever changes are appropriate and necessary to your particular transaction. Consult a lawyer if you doubt the form's fitness for your purpose and use. Wolcotts makes no representation or warranty, express or implied, with respect to the merchantability or fitness of this form for an intended use or purpose. N67i740N�n 9 WOLCOTTS FORM 1400 POWER OF ATTORNEY - GENERAL (includes optional DURABLE POWER OF ATTORNEY), Rev. 3 94 (price class 3A) c 1994 WOLCOTTS FORMS. INC. CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT . �-i. �. _�._ a_�- �,:_-�,__ S. _S. Jr_ �,' S,._i �G'.: ti__�- _1`__ti ��-=�`--� -ti--1'--�..• a�.__4 _d._ t� :�._�. _•_ _ �_ ,_ ,.. _ ._,._ 4, �.,_�_ tt�-``.1l, i State of California County of ss. �� before me, On , Dale Name and Title of Officer i e.g.. "Jane Doe, Notary Public") personally appeared Name(s) of Signer(s) LEiLANI V. INES Comm'ssion 1170950 z _ No -cry Puolic - Cal'formia i Z C Orcnge Co:,nfy My C cr ,nn. Expires Jan 25. 2002 (personally known to me Ll proved to me on the basis of satisfactory evidence to be the person whose namej is/af-e subscribed to the within instrument and acknowledged to me that he/&I:e H_ y executed the same in his/tkegt#e+ authorized capacity(tesj; and that by his/fir signature on the instrument the person ,�a'}, or the entity upon behalf of which the person,(. acted, executed the instrument. WITNESS my hand and official seal. jWut_�, V 4111� Place Notary Seal Above Signature of Notary Public OPTIONAL Though the information below is not required by law, 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: Document Date: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer Signer's Name: Individual ❑ Corporate Officer — Title(s): Partner — ❑ Limited ❑ General D. Attorney in Fact Trustee 71 Guardian or Conservator ❑ Other: Signer Is Representing: Number of Pages: RIGHT THUMBPRINT OF SIGNER Top of - © 1997 National Notary Association - 9350 De Solo Ave., P.O. Box 2402 • Chatsworth, CA 91313-2402 Prod. No. 5907 Reorder: Call Toll -Free 1-800-876-6827 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT "� .::��,� --,ti',..1.. � i �ti:'�t< - : i:: -.5. .. C.' „1c`.ti:;i'rS-S-C`41(`,C�`.Gr�l`.G.=C!`,G!',CC`,C; �:�rti•-,�-C'�-C'1�.L . `: - %.... �, `_ti :mot; <�ti X State of California v ( ss. County of Di2ANGI� \ I v On before me, Lei l(AV1 i Date I (Name, and Tille of Officer (e.g.. "Jane Doe. Notary Public") personally appearedJ��N� Name(s) of Signer(s) apersonally known to me ❑ proved to me on the basis of satisfactory Y qevidence v v' to be the personko whose name(•s) is/are LEILANI V. INES subscribed to the within instrument and COn M15sion # t i 7og6o I acknowledged to me that 4e/she/44e executed 3 ..� a Noary?colic CoGfom;a > the same in ->tiris/her/tiair authorized Orange County ? rvlyCcmm,Expires ion 25,2Q?2 capacity(ies), and that by b+s/her/their signature(•s) on the instrument the person(&•), or the entity upon behalf of which the person(&) acted, executed the instrument. Y WITNESS my hand and official seal. Place Notary Seal Above Signature of Notary Public ,l 2 OPTIONAL Though the information below is not required by law, 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: Y? Document Date: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer Signer's Name: Individual ❑ Corporate Officer — Title(s): Partner — ❑ Limited ❑ General ❑ Attorney in Fact Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: Number of Pages: RIGHT THUMBPRINT OF SIGNER •. © 1997 National Notary Association - 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313-2402 Prod. No. 5907 Reorder: Call Toll -Free 1-800-876-6827