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Home My WebLink AboutC-4935 - Encroachment Agreement (for 420 Catalina)rCN V .FIECORDWG REUL TED D i BOtDEN STATE ATTORNEY •=f�VICJ PLEASE COMPLETE THIS INFORMATION RECORDING REQUESTED BY: Bruce G. Schweitzer 1651 E. 4th St., #109 Santa Ana, CA 92701 AND WHEN RECORDED MAIL TO: Bruce G. Schweitzer 16.51 E. 4th St., #109 Recorded in the County of Orange, California Gary L. Granville, Clerk/Recorder IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII_IIIIIIIIIIIIIIIIIII 31.00 005 26e09929 26 179970161426 3:41pm 04/08/97 Al2 9 7.00 24.00 0.00 0.00 0.00 0.00 THIS SPACE FOR RECORDER'S USE ONLY Encroachment Agreement Title of Document f THIS PAGE ADDED TO PROVIDE ADEQUATE SPACE FOR RECORDING INFORMATION ($3.00 Additional Recording Fee Applies) (3/ 4):k.r (a:NcYormI Np dupp1.PO ENCROACHMENT AGREEMENT THIS AGREEMENT is made and entered into this /G� day of p/7a/ -X',% 1997, by and between Albert D. Doum and Susan L. Smith (Smith"), June and Gerald Sinykin (Sinykin), and the City of Newport Beach, California, 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 "City"): RECITALS A. Smith and Sinykin desire to construct a block wall and related footings ("Permitted Improvements") . A portion of the Permitted Improvements on property owned by Smith (420 Catalina) encroaches into a portion of an existing five foot sewer easement over the Smith's property which is owned by the City ("Easement") and is recorded in Book 2604, Page 629 of Official Records of the County Recorder of Orange County, California ; and B. The Permitted Improvements could, in the future, interfere with City's ability to construct, operate, maintain, and replace City and other public facilities and improvements (Perform Work) within the Easement; and C. The parties hereto desire to execute an agreement authorizing the City to remove all or a portion of the Permitted Improvements if necessary to Perform Work in the easement and clarify the respective rights and duties of the parties NOW, THEREFORE, in consideration of the mutual promises, the parties hereto agree as follows: 1. The Permitted Improvements are a 4'-6" high concrete retaining wall and appurtenances as shown on Exhibit "A" and "B" and as approved by the City Engineer. 2. City will permit Smith and Sinykin to construct, reconstruct, install, maintain, use, operate, repair and replace the Permitted Improvements and appurtenances , within a portion of the Easement, all in substantial conformance with plans and specifications on file in the City. 3. Rights granted under this Agreement may be terminated by City at any time by giving 60 days' notice, 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. The City shall not terminate this Agreement unless and until the Permitted Improvements and appurtenances interfere with the City's ability to construct, operate, maintain or replace City or other public facilities and improvements within the Easement. 4. Smith, Sinykin and City further agree as follows: a. Smith and Sinykin shall maintain the Permitted Improvements in accordance with general prevailing standards of maintenance, and pay all costs and expenses incurred in doing so as they shall agree among themselves. However, nothing in the Agreement shall be construed to require Smith or Sinykin to maintain, replace or repair and City owned pipeline, conduit or cable located in or under said Permitted Improvements, except as provided in this Section (4). c. If City or other public facilities or improvements are damaged by the installation or presence of Permitted Improvements, Smith and Sinykin 2 shall be responsible for the costs of repairs in proportion to their respective fault. d. Should City be required to enter onto the Easement to Perform Work , City may remove portions of the Permitted Improvements, as required, and in such event: (i) City shall notify Smith and Sinykin of its intention to accomplish such work, if an emergency does not exist; (ii) Smith and Sinykin shall be responsible for arranging for, and paying all costs associated with, renewal or restoration of the Permitted Improvements affected by such work by the City; (iii) City agrees to bear only the cost of any removal of the Permitted Improvements affected by such work by City; (iv) Smith and Sinykin agree to pay all costs for renewal or restoration of the Permitted Improvements in accordance with Exhibit C. d. This Agreement does not create any rights on the part of City over any property owned by Sinykin except for the right to remove that portion of the Permitted Improvements, if any, on the Sinykin Property (the parcel commonly known as 427 Santa Ana Avenue, Newport Beach.) 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 Smith or Sinykin, City may enter upon Easement and remove all or part of the Permitted Improvements installed by Owner. Termination because of breach shall be upon 3 a minimum of ten (10) days written notice, with the notice specifying the date of termination. 6. Smith and Sinykin shall 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 Smith agrees that this Agreement shall remain in full force and effect from execution thereof; shall run with the land; shall be binding upon heirs, successors, and assigns of Smith's interest in the land whether fee or otherwise, and shall be recorded in the Office of the County Recorder of Orange County, California. This Agreement shall be binding on the successors in interest to the Sinykin Property IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the day and year first above written. APPROVED AS TO FORM Assistant City Attorney ATTEST: LaVonne Harkless CITY OF NEWPORT BEACH a municipal corporation Janice Debay, Mayor 'City" Albert D. Doum, Jr . 4 City Clerk Susan L. Smith F:\cat\debbie\ag\420cataldoc 03-07-97 Gerald B. Sinykin 5 State of California County of Orange On .3—/a personally appeared before personally known to me - OR - Comm. *1008878 f� ®' ilf. NOTARY PUBLIC CALIFORNIA7� �'r ORANGE COUNTY ��)j • ' Comm. Expires Nov. 11. 1997.1 me, Irene Butler, Notary Public, 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/thy executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature()_on the instrument the person(s), orthe entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. CAPACITY CLAIMED BY SIGNER v Individuals Corporate Officer Limited Partner General Partner Attorney -in -Fact Trustee(s) Guardian/Conservator Other: Signer is Representing: DESCRIPTION OF ATTACHED DOCUMENT Title or Type of Doc(m t Number of Pages d — 7 Date of Document Signer(s) Other Than Named Above State of California County of Orange On /o—r7 personally appeared before me, Irene Butler, Notary Public, personally known to me - OR - 0 Comm. 01005878 TARY PU8l.1C - CAIUFOR ORANGE COUNTY Comm. Expires Nov. 11. 1997 x r 8Les1'il'AONNu 'W uNfl00 3ONVkl0 VINU0211VO 0118(ld ARYL 8L88001# 'wwoo i 831.in proved to me on the basis of satisfactory evidence to be the person(s) whose name( is/are subscribed to the within instrument and acknowledged to me that he/she/t y executed the same in his/her/their authorized capacity(ie , and that by his/her/their signature(51on the instrument the person(s), orthe entity upon behalf of which the person( acted, executed the instrument. WITNESS my hand and official seal. CAPACITY CLAIMED BY SIGNER Individual Corporate Officer Limited Partner General Partner Attorney -in -Fact Trustee(s) Guardian/Conservator Other: Signer is Representing: DESCRIPTION OF ATTACHED DOCUMENT Number of Pages 2/d—y7 Date of Document 17A, Signer(s) Other Than Named Above BRUCE G. SCHWEITZER ATTORNEY AT LAW STONEBRIDGE COURT, 1651 EAST FOURTH STREET, SUITE 109, SANTA ANA, CA 92701 TELEPHONE (714) 834-0959 FAX (714) 541-0849R E LA El April 11, 1997 Robert H. Burnham City of Newport Beach PO Box 1768 Newport Beach, CA 92658 APR 1 199? CITY 1;IJORNEY CITY OF NEWPORT BEACH RE: Smith/Sinykin Dear Mr. Burnham: Enclosed please find a copy of the recorded Encroachment Agreement and Agreement for Wall Maintenance. Kindest Regards, BRUCE G. SCHWEITZER Attorney at Law Kristin Langecretary to Bruce G. Schweitzer BGS:kl