HomeMy WebLinkAboutC-7772-1 - Encroachment Agreement EPN N2012-0166 for 1539 Sulvia LaneRECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
Public Works Department
City of Newport Beach
P.O. Box 1768
Newport Beach, CA 92658 -8915
Recorded In Off lcial Records, orange County
Tom Daly, Clerk-Recorder
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ENCROACHMENT AGREEMENT
(EPN 2012 -0166)
use only,
THIS ENCROACHMENT AGREEMENT ( "Agreement ") is made and entered into
this I Ztn ' day of J -J1 \,f , 2012, by and between Marshall Scott
Solomon and Maria Lee Solomo , Trustees of The Solomon Revocable Living Trust
dated October 26, 2007 ( "Owner "), and the City of Newport Beach, California, a
California municipal corporation organized and existing under and by virtue of its
Charter and the Constitution and the laws of the State of California ( "City ").
WITNESSETH:
WHEREAS, Owner is the vested owner of property located at 1539 Sylvia Lane
Newport Beach, California 92660 and legally described as Lot 5 of Tract 1805, as
shown on a map recorded in Book 61, Page 40 inclusively of Miscellaneous Maps in the
office of the County Recorder of Orange County, County Assessor's Parcel Number
117- 402 -21 ( "Property "),
WHEREAS, Owner desires to construct certain non - standard improvements as
further described herein ( "Permitted Improvements ") within the Sylvia Lane and Beryl
Lane right -of -way (hereinafter "Right -of -Way ") that is located adjacent to the Property.
WHEREAS, said Permitted Improvements may interfere in the future with City's
ability to construct, operate, maintain, and replace City and other public facilities and
Improvements within Right -of -Way; and
WHEREAS, the parties hereto desire to enter this Agreement providing for
fulfillment of the conditions required by City to permit Owner to construct and maintain
said Permitted Improvements.
NOW, THEREFORE, in consideration of the mutual promises, the parties hereto
agree as follows:
It is mutually agreed that Permitted Improvements shall be defined as:
q1
'I Y
a. A USPS approved mailbox mounted in a 19 -inch by 22 -inch pilaster
constructed of brick pavers encroaching up to seven feet into the Sylvia Lane public
right -of -way;
b. A 30 -inch high wooden picket fence and 34 -inch high wooden posts
encroaching up to 5' -3" into Sylvia Lane and Beryl Lane public rights -of -way and
appurtenances as shown on EXHIBIT "A" attached hereto and as approved by the
Public Works Department.
C. In addition, if the wooden picket fence and posts are reconstructed in the
future, said Permitted Improvements will be installed a minimum of three feet from the
curb face.
d. In addition, if any of the Permitted Improvements actually built or installed
during the time of construction vary from the Permitted Improvements approved herein,
such variations or changes must be approved in advance by the Public Works
Department and shall be shown on the "As Built" plans.
2. City will permit Owner to construct, reconstruct, install, maintain, use, operate,
repair and replace said Permitted Improvements and appurtenances incidental
thereto, within a portion of Right -of -Way, if in substantial conformance with the
plans and specifications on file in the City. City will further allow Owner to take
all reasonable measures necessary or convenient in accomplishing the aforesaid
activities.
3. Rights granted under this Agreement-may be terminated by City with or without
cause and at any time without notice. The City shall make good faith efforts to
provide notice (60) days in advance of termination specifying in said notice the
date of termination. City shall incur no liability whatsoever in the event of the
termination of this Agreement, or subsequent removal of improvements by City.
4. Owner and City further agree as follows:
a. Owner may construct and install Permitted Improvements and
appurtenances incidental thereto, in substantial conformance with the plans and
specifications on file in the City's Public Works Department, and as described on Exhibit
"A" attached hereto.
b. Owner shall maintain the Permitted Improvements in accordance with
generally prevailing standards of maintenance, and pay all costs and expenses incurred
in doing so. However, nothing herein shall be construed to require Owner to maintain,
replace or repair any City -owned pipeline, conduit or cable located in or under said
Permitted Improvements, except as otherwise provided herein.
C. If City or other public facilities or improvements are damaged by the
installation or presence of Permitted Improvements, Owner shall be responsible for the
cost of repairs.
Encroachment Agreement Page 12
d. That should City be required to enter onto said Right -of -Way to exercise
its primary rights associated with said Right -of -Way, including but not limited to, the
maintenance, removal, repair, renewal, replacement or enlargement of existing or future
public facilities or improvements, City may remove portions of the Permitted
Improvements, as required, and in such event:
i) City shall notify Owner in advance of its intention to accomplish such work,
provided that an emergency situation does not exist.
ii) Owner shall be responsible for arranging for any renewal, replacement, or
restoration of the Permitted Improvements affected by such work by City.
iii) City agrees to bear only the cost of any removal of the Permitted
Improvements affected by such work by City.
iv) Owner agrees to pay all costs for the renewal, replacement, or restoration of
the Permitted Improvements.
5. In the event either party breaches any material provision of this Agreement, the
other party at its option may, in addition to the other legal remedies available to it,
terminate this Agreement, and, in the event the breaching party is Owner, City
may enter upon the Right -of -Way and remove all or part of the improvements
installed by Owner. Termination because of breach shall be upon a minimum of
ten (10) day notice, with the notice specifying the date of termination. In the
event of litigation, commenced with respect to any term of condition of this
Agreement, the prevailing party shall not be entitled to reasonable attorneys fees
and costs incurred.
6. Owner shall defend, indemnify and hold harmless City, its City Council, boards
and commissions, officers and employees from and against any and all loss,
damage, 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 design, construction, maintenance, or continued existence of
the Permitted Improvements.
7. Owner agrees that this 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 Owners' interest in the land, whether fee or
otherwise, and shall be recorded in the Office of the County Recorder of Orange
County, California.
8. The laws of the State of California shall govern this Agreement and all matters
relating to it and any action brought relating to this Agreement shall be
adjudicated in a court of competent jurisdiction in the County of Orange.
Encroachment Agreement Page 13
9. The terms of this Agreement shall be construed in accordance with the meaning
of the language used and shall not be construed for or against either party by
reason of the authorship of the Agreement or any other rule of construction which
might otherwise apply.
10. This Agreement represents the full and complete understanding of every kind or
nature whatsoever between the parties hereto, and all preliminary negotiations
and agreements of whatsoever kind or nature are merged herein. No verbal
agreement or implied covenant shall be held to vary the provisions herein.
11. A waiver by either party of any breach, of any term, covenant or condition
contained herein shall not be deemed to be a waiver of any subsequent breach
of the same or any other term, covenant or condition contained herein, whether
of the same or a different character.
12. Owner shall at Owner's own cost and expense comply with all statutes,
ordinances, regulations and requirements of all governmental entities, including
federal, state, county or municipal, whether now in force or hereinafter enacted.
13. If any term or portion of this Agreement is held to be
unenforceable by a court of competent jurisdiction,
this Agreement shall continue in full force and effect.
invalid, illegal, or otherwise
the remaining provisions of
Encroachment Agreement Page 14
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date: !L. ;'L
By: i'. . l- (Of
Aaron C. Harp,
City Attorney
ATTEST:
Date:
By: I _�
Leilani Brown, City Clerk
CITY OF NEWPORT BEACH,
a California Municipal corporation
Date: a-
.By: I ,�s --fin
Dav ff,
City Manager
OWNER(s):II
Date: --I 12- 12
By:—NLw — , Ti -..a?
Marshall Scott Solomon, Trustee
The Solomon Revocable Living Trust
Date: -711;?- it 2
By ✓ l OL c 4U '4/� -r rke-
M ria Lee Solomon, Trustee
The Solomon Revocable Living Trust
Owners must sign in the presence of notary public
ATTACHMENTS: EXHIBIT A —Plans as approved by Public Works
llcnb- 2005luserslpbw lsharedll- encroachirow agreements1201202012 -0166- 1539 sylvia lane.doc
Encroachment Agreement Page 15
CALOFORNBA ALL-PURPOSE ACKNOWLEDGMENT
CIVIL CODE § 1189
State of California
County of UE'ay G C�
On ,Q"3L l `� 1ct a before me, l v y,- L�,1 e-E-s�, `�I 0 V!U P01011-C.
Oato _ Mere Insert Name: and Title of the officer
personally appeared
who proved to me on the basis of satisfactory
evidence to be the personWwhose narnako is lard
subscribed to the within Instrument and acknowledged
to me that he /sfv_d/tbq executed the same in
his /he#03eif authorized capacityW, and that by
his /het`/ttlefr signature(ey on the instrument the
person(s), or the entity upon behalf of which the
personjsfacted, 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 d official seal.
Signature: _
Placo Notary Son; Above Signature of No iry I th le
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: .Number of Pages:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name:
L1 Corporate Officer — Title(s):
❑ Individual
• Partner — ❑ Limited ❑ General Tor, of Thumb here
• Attorney In Fact
❑ Trustee
Guardian or Conservator
❑ Other:
Signer Is Representing:.
Signer's Name:
❑ Corporate Officer —
❑ Individual
a
• Partner — ❑ Limited ❑ General Top of Thumb here
• Attorney in Fact
• Trustee
❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
1�
0 2010 Nallonal Notary Assoemflon • NalonalNotary.brg • 1 -800.Ua NOTARY (1-800 B7 6,6827) Item 45007
ACKNOWLEDGMENT
State of California
County of -e _) ss.
J /�.
On -7- l L / Z before me,
Notary Public, personally appeared / / /'YA't l 's7c vm a'1
,who 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. , _- _ _ _
JULIE ffIDD.
WITNESS my hand and official seal. commiselon n 1966686
L1@WW:V:VM4`::MM tart' Public - California Orange County . EN Ires Feb 6, 2016+
i
Signa (seal)
ACKNOWLEDGMENT
State of California
County of �� g� ) ss.
On before me,
Notary Public, personally appeared Maria-
� orno 7
,who 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.
/ �
Sign re
(seal)
JUL" "0)
Commission a 1968896
Notary Public - California
Orange Counly _
Encroachment Agreement Page 16
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Agenda Item No. 5
June 26, 2012
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Public Works Department
Stephen G. Badum, Public Works Director
949- 644 -3311, sbadum @newportbeachca.gov
PREPARED BY: Socheata Chhouk, Associate Civil Engineer
APPROVED: A
TITLE: Request to Retain Private Improvements in the Public Right -of -Way
at 1539 Sylvia Lane
ABSTRACT:
The property owners at 1539 Sylvia Lane„ Marshall Scott Solomon and Maria Lee
Solomon, Trustees of The Solomon Revocable Living Trust, are requesting to retain
private, non - standard improvements within the Sylvia Lane and Beryl Lane public rights -
of -way, which include a brick mailbox pilaster and wooden picket fence, with varying
heights up to 2 feet, 10 inches and encroaching up to 5 feet, 3 inches into the public
rights -of -way.
RECOMMENDATION:
Waive Council Policy L -6, "Private Encroachments in the Public Rights -of- Way ", to allow
the existing brick mailbox pilaster and wooden picket fence, all of which encroach in
excess of one foot into the Sylvia Lane and Beryl Lane public rights -of -way, provided
the property owners enter into an Encroachment Agreement with the City to maintain
these private improvements within the public rights -of -way and that all conditions of the
Encroachment Permit process are met. Authorize the City Manager to execute the
Encroachment Agreement."
FUNDING REQUIREMENTS:
There is no fiscal impact related to this item. All improvements will be funded by the
property owners.
Request to Retain Private Improvements in the Public Right -of -Way at 1539 Sylvia Lane
June 26, 2012
Page 2
DISCUSSION:
Along the Sylvia Lane and Beryl Lane frontages, the property currently has a brick
mailbox pilaster and a wooden picket fence.
The property owners have requested to retain these existing private, non- standard
improvements in the public rights -of -way. The brick mailbox pilaster is 19" by 22" wide
and 51" high and is located at the back of curb. The wooden picket fence is 30" high.
The wooden posts are 34" high. The fence encroaches up to 5' -3" into the right -of -way:
The property line is T from the curb face.
These existing private, non - standard improvements violate Council Policy L -6, Section
A, Item 1, which prohibits private improvements to encroach in excess of 1 foot into the
public right -of -way: The property owner is asking City Council for a variance to Council
Policy L -6 under Section G.
The variance will not impact the ability of people to exit parked vehicles. The fence is
located 21 -22" behind the curb face. Typically, the City requires 18" behind the curb
face to be clear for passenger access and vehicle door swing. There are no existing
City utilities within the parkway and the proposed encroachments do not impact the
public interest. These private improvements do not diminish the rights of the public,
present and future.
Presently, there is no public sidewalk along the Sylvia Lane and Beryl .Lane public
rights -of -way and these two roadways have not been identified as a Significant Link
Street in the City's circulation system (Resolution No. 88 -88).
An Encroachment Agreement would permit the City to terminate rights granted at any
time in the future and could require removal of the non- standard improvements within
the Sylvia Lane and Beryl Lane public rights -of -way.
ENVIRONMENTAL REVIEW:
Staff recommends the City Council find this action is not subject to the California
Environmental Quality Act ( "CEQA ") pursuant to Sections 15060(c)(2) (the activity will
not result in a direct or reasonably foreseeable indirect physical change in the
environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378)
of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it
has no potential for resulting in physical change to the environment, directly or
indirectly.
0
Request to Retain Private Improvements in the Public Right -of -Way at 1539 Sylvia Lane
June 26, 2012
Page 3
NOTICING:
The agenda item has been noticed according to the Brown Act (72 hours in advance of
the meeting at which the City Council considers the item).
Submitted by:
ffi'"G. Badum
Works Director
Attachments: A. Area Map
B. Project Plan
C. Photos of Private Encroachments
D. Council Policy L -6, Private Encroachments in Public Rights -of -Way
E. Letter from Property Owners
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EXHIBIT B - PROJECT-SITE PLAN
R� L LANE
CURB DRAIN
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(, .� •' ADD 875 S:F. 13
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� TO 2ND FLR
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ADD 17 S.F.
P.A. I ' �TO GARAGE —
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(E) MAILBOX PILASTER AND PICKET
FENCE IN R.O.W TO REMAIN- A CITY
ENCROACHMENT AGREEMENT IS REQUIRED
KIT 611VC
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EXHIBIT D- COUNCIL POLICY L -6
M
PRIVATE ENCROACHMtNTS IN PUBLIC RIGHTS -OF -WAY
It is the general policy of the Gty that "the public A are to be reserved for
public use or open space; and that the rights of the public; present and future, are norto
be diminished by the installation of private improvements within the public ,rights:-& -
way.
Categories of private encroachments and improvements are listed below; together with
the permit requir.ement'for each category.
A. Private enaoachrnents prpWig d;
1. Structural encroachments not otherwise listed, ineludmg but not I
to, fences, wedip, patios,, hised planters, etc" which encroacli'm excess`of I
foot. :into the public nght of dvay, or exceed 3 feet
' in heigt►t, measured
from "the top, of °curb elevation /or <from sidewalk eleuahon:syhere sidewalk
exists.
2. Diiveway approaches iot- conforming to:CouhW Policy Lr2.
3. Ocean front street end, or Bay front street 'end improvements mot
C046 to- Policy Lr8.
4. Ocean front alley end iinprovements not conforming to Council Pblicy
L=8.
5. Modificatio its 'to ongu►al design con- PIT ts ,approved ^.by. ieePy.
6: Private signs except as provtded for m the Builduig'Coie.
7. Lighting.
8. Paikway surfacing of loose rock .gravel, or any surfacing other :than
standard or colored %textured :concrete or flat stone /brick ms' W' Jed at
grade and grouted,
9. Private dwellings and appendages including raised patios and decks;
except as provled.for in this section' and the Building Code.
10. Pay telephones and;privaie mail carriers drop boxes.
ti
E
Private encroachments requiring an encroachment permit and if - applicalle an
eneroachirient agreement from the L'ablic Works Department and General
Services Department appioval.
1. Tree planting andrenoval.
2. Shrub plan ting and A!hi6val.
3
Median'
'if in the „opinion ,of the General Service
being tnaintaune3 for view and safety
Abatement " of the,lVlurucipal Code shaIIb
C.
applicable ad
1. Drive = approaches confonvng to Council I?ohcy L 2.
2. Standard sidewalks.
3.: - Carnage walks:
4: Parkway surfacing (standard colorea xt or :flat
stone /back) uistalled ai grade (subject -to General Seavices Depart nerit
review for tr&ivell locati6r ):
5. CATV and pubhc u"tq facilities:
6. Strflctvral encroachments riot otherwise listed, uicludung b "it root limited.
to, fences, walls, patios; rahs a planters, ek , which encroach Y foot or less
into the public right- of=way, if howeve, m ttie opuuon of the &'ublic
Works Department, the nature or locaison of this type of encroachment is
:S,& i :that Council review v."warranted, the Department may forward the
t0 the C6i*. .action.
2
I-z-
M
7. Mail,boxies, when required by ihe'U.S.PoAal Service. The front of mailbox
shall be aligned in the same vertical plane as the back of 'the curb. Mailbbjc
base construdion'l-en'gth shall not exceed the length of,the mailbox, or 24 .
inches,,ivbichever is less. I
8. The placement of utility pedestals sbAU be at the back of sidewalks on
4 shall I
arterials and major pedesfrian.tboroughfares without zero setbacks: In
h. e commercial areas there . sha, ll be at least 4 feet 6f'deAr sidewalk w
idt h
d /orp- destals,shalI, placed in he oiagae of walk area:•
9. Ohein connecting to 6r,reloci M9
ift public utilities.
.".
D. Private -encroachments re" ' " " - ' Iaq hment Permitifrom the Public
Department encroachments I � quwing an , - , - i 1. � . - .1 1 . I � "
D6artment and subject to the execution o an agreement for' 'non standard
improvements. ,
1.
a. Santa Ana Avenue from Cliff Drive to Fifteenth Street.
2. Permitted Structural Encroachin.ents on'Balboa island along South , pay
Bay Front „ Grand. Canal, and . I
Front, North Va ift areas follows.
a. Planters that do .not ,exceed 1, foot ,, a' Wi4dft'2U.69, of
the back of
'- - .J 5p... `. Pl. . a..h..b...i.d .
't,h,..,gr
cover: .
shrubs not -t oe*c� 2 ic&t n .4 . ine
e.,ure, A o.
eleyatio
b. Fences with a rni'Mirn U-M.setibaickof'2;- 6"-from back oftideivaik.
For patios constructed at grade :elevaho to 1' Ab&?e
sidewalk &ad,-- elevatiM ;Fences .
' *_ . r, i I y be 3' high above
sidewalk gr a&i6c6nfq' with `Budding and i”
q-ode Regulations.
ii. For patios constructed, ' greater ib6v
gre;k, ?r than .1 6 sidewalk grade
elevatioN* Fences must be set back a minimum of 3' -from,
3
1,77
E
back of sidewalk; •not exceed 2'-6" ,in,h6ij it aUove tie patio,
have at least 40% wisibihty'through -them, and „ not to ;exceed
4' in height above' exvstiug. public sidewalk grade.
C. Patios with a,n nimum setback cif 2'4' from the back of sidewalk:
L
3. Structural encroachments 491 otlierwase .l. . tC - d which do not exceed three
(3) feet Kheight including but not limited to fences, walls, patios, and
raised planters in public nghts of ways m areas; that are five ;(5) feet
behind the'face of curb'!on the following streets:
a. Southerly side of West Bay Avenue lietw $th Street and;,i5th
Street.
E. Private encroachments not iequuu►g a: permit:
1; Faz way lawn and ground cover.
2., Pazkway sprinkling systems.
3: Use of public streets •an projections over public property wlucl are
covered by the Urufor i Building Code under a �vand building pe u t
issued 1>y the City.
4
IA-
I
r
F. Application for ally J
AuPU Depot ft
the p",qopd pland�,t€
pe=�. required klnoi
submission the C#3
it :shall be proce sse(
,G;
init as r
it on a form
work and tt
section A, It
)ijhcit �Iflhe
Im
-01e
tow
jr a
,kale.
I
granted nl esp
Ithifi. "."bt
with e pu c
, 1 -1
5
16
5 1
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EXHIBIT E- LETTER FROM PROPERTY OWNERS
MARSHALL d& MARIA SOLOMON
1539 SYL P IA LANE
NB1WPORTBEACH, CA 92660
(949) 631 -6753
June 4, 2012
Dear Newport Beach City Council Members,
We are constituents of yours living in the Dover Shores area. We have been working with the Public
Works Department at City ]-fall to find a way to resolve a small matter involving our property.
We recently completed a remodel of our home on Sylvia Lane (in the sister streets portion of Dover
Sbores). In connection with our final sign -off, the city raised an issue regarding a front IaHn fence that
we have on our property that sits on an easement. Councilman Bill graciously helped us to remove
resolution of this issue as a condition of our final construction sign -off with the understanding that we
would still apply for an encroachment permit and put the matter before you, the City Council. We are
now appealing to all of you to grant the encroachment permit for the reasons outlined below.
As we arc on a comer, the fence itself protects our front yard from both Beryl and Sylvia Lane. We
have 2 young children and a dog and a number of the neighborhood kids love to play on the large olive
tree sitting in our front yard. Therefore, the fence itself serves a very valid purpose in protecting
everyone from cars and passersby. The fence itself has been in its same location since at least 2001 as
the aerial photos will attest. As you can see from the enclosed pictures, the fence is no more than 3 feet
high and is in very good shape.
We understand that the fence sits in an casement. As you may know, our neighborhood does not have
sidewalks and it is our understanding that the City has no plans to 'install them. Certainly if the City
ever decides to build a sidewalk, it would be our responsibility to pay for the removal of the fence as it is
an encroachment. Given the fact that fence has been in the same location for a number of years, the fact
that City doesn't have any plans to build sidewalks in our neighborhood, the size of the fence, etc. it is
our understanding that all City officials who have reviewed this case to date agree with the
recommendation to allow the fence to remain "as is" and we appeal to you to do the same.
Thank you for your consideration.
Sincerely,
Marshall Solomon
Maria Solomon
t7