HomeMy WebLinkAboutC-4896(A) - Sound Wall Construction and Encroachment Agreement (for 1730 Port Manleight Circle)v
RECGRDING REQUESTED BY AND
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WHEN RECORDED RETURN TO:
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City Clerk
City of Newport Beach
Post Office Box 1768
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3300 Newport Boulevard
Recorded in the County of Orange, California
Gary L. IIIIIIIIIIIillllllllllllllllllllllllli Granville, Clerk/Recorder NO
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19980826674 1;24pm 12/03/98
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Newport Beach, CA 92659-1768 ,/y`'�
SPACE ABOVE THIS LINE FOR RECORDER'S USE 0S
SOUND WALL CONSTRUCTION AND ENCROACHMENT AGREEMENT
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THIS AGREEMENT, entered into this *5ZH day of OCTOBER , 1998, by and between the
CITY OF NEWPORT BEACH, a municipal corporation (hereinafter referred to as "CITY"), and
McINALLY FAMILY TRUS'�,(hereinafter referred to as "OWNER") is made with reference to the
following: JoA" N1c-le— 117 a -cl MC Tnt, 11 7 , Tr,., 3 s �
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 1730 Port Manleigh Circle. The legal description of said property is Lot
56 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
1. 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).
i. 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 Agreement/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.
APPROVED. AS TO FORM:
City Attorney
ATTEST:
City Clerk
[NOTARY PUBLIC JURATS ATTACHED]
CITY OF NEWPORT BEACH
a municipal co r Non
By
Mayor
OWNER(S)
McINALLY FAMILY TRUST
By: A'N WIC
JOHN PATRICK MCINALLY T, S}may
By-
LESLIE J INE MCINALLY
Sound Wall Agreement/sound-5.agr 5
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
No. 5907
State of
County of1�=��
On U, ?! S before me, b- I,, ✓'C�
DATE NA 4 , TITLE OF OFFICER - E.G., 'JANE DOE, NOTARY PUBLIC"
personally appeared 'I h N rf /� j 2, IJc Z�;r4(,Lc/ ->-
NAME(S) OF SIGNER(S)
❑ personally known to me - OR - ❑ 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 ac-
knowledged to me that he/she/they executed
the same in his/her/their authorized
capacity(ies), and that by his/her/their
g signature(s) on the instrument the person(s),
AMY i{LlN?ING or the entity upon behalf of which the
COmm. #1042205 person(s) acted , executed the instrument.
- V07ARY PU3LIC CALIFORNIA
ORANGE COUNTY 0
y COMM EXPres OCt 9. 1998 -A
WITNESS my hand and official seal.
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SIGNATURE OF NO RY
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CAPACITY CLAIMED BY SIGNER
❑ INDIVIDUAL
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TITLES)
❑ PARTNER(S) ❑ LIMITED
❑ GENERAL
❑ ATTORNEY -IN -FACT
TRUSTEE(S)
❑ GUARDIAN/CONSERVATOR
❑ OTHER:
SIGNER IS REPRESENTING:
NAME OF PERSON(S) OR ENTITY(IES)
DESCRIPTION OF ATTACHED DOCUMENT
SGUnl17 ""ISA��LC. �DJSi12toaA1 R3JJ
TITLE OR TYPE OF DOCUMENT
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DATE OF DOCUMENT
/y0�—
SIGNER(S) OTHER THAN NAMED ABOVE
01993 NATIONAL NOTARY ASSOCIATION - 8236 Remmet Ave., P.O. Box 7184 - Canoga Park, CA 91309-7184
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
County of 0 '-lu ._ 1 A n ss.
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On i ' �� before me, � r J�n�-f IJ v ���� L
Date /� Name Ind Title of Officer (e.g., Jane Doe, `No ry P ' ") S
personally appeared \� -1`1 `'� �:'` � Uc c-" A \ ,t VD.n int -fit) )
Nam W of Sinnorlcl
Ccr': miSSi:;r 7a?29
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Orange County
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My Comm. 50res Feb 21, 2002
impersonally known to me
0 proved to me on the basis of satisfactory
evidence
to be the perso (s) whose nam (s) is/ re
subscribed to the within instrument an
acknowledged to me that he/she the executed
the same in his/her/ eir authorized
capacity( s and that y pis/her the'
si natur son the instrument the erso s or
the entity upon behalf of which the perso s)
acted, executed the instrument.
7S.Smy hand arid official seal.
Place Notary Seal Above 'gnat a ofNotary Public
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Description of Attached ¢o_cumen
Title or Type of Document: t'
.r �\�,-v.tfi�,,.,,
Document Date: Number of Pages:
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Signer(s) Other Than Named Above: C
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:
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OF SIGNER
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0 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