Encroachment Agreement - Rosenthal, Eric - 2013-06-27::ecoa ding
Reque: :ed By:
AND WHEN RECORDED MAIL TO:
Name
Costa Mesa Sanitary District
Address 628 West 19th Street
City
Costa Mesa
State
CA, 92627
09-16-13A11:03 kt.,:!j
Recorded in Official Records, Orange County
Hu h Nguyen, Clerk-Recorder
� 111111�] �1111111 NO FEE
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"Exempt from recording fees pursuant to
Government Code section 6103"
ENCROACHMENT AGREEMENT
(1661 INDUS STREET, NEWPORT BEACH) 1
This ENCROACHMENT AGREEMENT is made and effective as of J
ULM o'I+ , 2013, between the Costa Mesa Sanitary District, a sanitary district,
( "DISTRICT ") and Eric Rosenthal, an individual, (hereinafter "FEE OWNER ") with
reference to the following facts:
1.
Recitals
WHEREAS, DISTRICT is a California sanitary district and a public entity
organized and existing under the authority of the Sanitary District Act; and
WHEREAS, FEE OWNER is the owner of the fee estate of property commonly
referred to as 1661 Indus Street, Newport Beach, California 92660 (Lot 22 of Tract No.
4307) (hereinafter "SAID PROPERTY "); and
WHEREAS, DISTRICT constructed a ten -inch (10 ") vitrified clay pipe sewerline in
a thirty- five -foot (35) wide sewer easement in the backyard of SAID PROPERTY and
adjacent lots in 1958; and
WHEREAS, the backyard of SAID PROPERTY and adjacent lots slope
downward; and
WHEREAS, the topography of the area is irregular and the nearby Orange
County Flood Control Channel caused obstacles to building a straight sewer line; and
WHEREAS, for all of those reasons, the sewer pipe was placed in the slope with
a thirty- five -foot (35) wide sewer easement to allow for access; and
WHEREAS, said thirty- five -foot (35) wide sewer easement causes a restriction
on FEE OWNER's use of his backyard; and
WHEREAS, FEE OWNER has a patio outside the rear of his house and desires
to extend that patio area by building a deck level with the present patio and cantilevered
straight out and over the sewer easement area and suspended over the backyard slope;
and
1
WHEREAS, FEE OWNER has represented that the deck has shallow footings
and can be removed easily in the event such removal is necessary for sewer repairs;
and
WHEREAS, the DISTRICT, as owner of the sewer easement, also owns the right
to have access to the sewerline for maintenance and repair; and
WHEREAS, FEE OWNER, in consideration for DISTRICT allowing him to build
over the sewerline, will agree to indemnify, defend, and hold the DISTRICT harmless
from any and all expense or liability caused by allowing the construction of the
cantilevered deck over the sewerline;
NOW, THEREFORE, the parties hereto AGREE to the following terms:
1. Premises: The premises covered by this ENCROACHMENT
AGREEMENT are the premises commonly known as 1661 Indus Street, Newport
Beach, California 92660.
2. DISTRICT's Sewer Main: DISTRICT's sewer main is shown in Exhibit A.
3. DISTRICT's Easement: DISTRICT has the right to maintain its sewer
main, including the right to access, clean, repair, and replace said sewer main and any
appurtenances attached thereto.
4. Cantilevered Deck: This ENCROACHMENT AGREEMENT allows FEE
OWNER to build a cantilevered deck (hereinafter with related appurtenances
"ENCROACHMENTS ") over SAID PROPERTY that is easily removable in the event
DISTRICT needs to maintain or repair the sewer line and needs the deck removed to do
so. FEE OWNER shall, at his cost, remove the deck upon forty -eight (48) hours notice
unless DISTRICT needs access sooner due to the urgency of the maintenance or repair
needed. Should FEE OWNER not remove the deck as required by DISTRICT,
DISTRICT shall have the right to remove the deck and impose the costs on FEE
OWNER by way of special assessment or property lien. DISTRICT shall not need a
warrant to enter the property to inspect or access its sewer line and shall not need a
warrant to remove the cantilevered deck. DISTRICT will make reasonable efforts to
notify the FEE OWNER before going in the backyard. FEE OWNER does hereby
consent to DISTRICT's right to enter the backyard for these purposes.
5. Indemnification / Hold Harmless: Should DISTRICT be required to
access, maintain, repair, or replace said sewer main or appurtenances related thereto
(hereinafter referred to as "SAID OPERATIONS ") and FEE OWNER's
ENCROACHMENTS interfere, hinder, or cause SAID OPERATIONS to be more
expensive because of their placement in the sewer easement, FEE OWNER agrees
that DISTRICT may cause ENCROACHMENTS to be removed or otherwise use more
expensive methods to conduct SAID OPERATIONS, and FEE OWNER agrees to
indemnify and defend DISTRICT from such extra costs or such more expensive costs
over and above what would have been incurred had such ENCROACHMENTS not
been present and FEE OWNER agrees to repair or replace said structures and
improvements constituting the ENCROACHMENTS at FEE OWNER'S sole cost after
DISTRICT'S completion of work.
2
6. Run With the Land: This ENCROACHMENT AGREEMENT shall run with
the land and shall be binding on and shall insure to the benefit of the heirs, successors,
executors, administrators, assigns, and personal representatives of the respective
parties.
7. Attorneys' Fees: If either party brings any action or proceeding to enforce,
protect, or establish any right or remedy under this ENCROACHMENT AGREEMENT,
the prevailing party shall be entitled to recover reasonable attorneys' fees.
8. Interpretation: This ENCROACHMENT AGREEMENT shall be construed
as drafted by both parties and shall not be construed for or against either of the parties.
9. Entire Agreement: This ENCROACHMENT AGREEMENT contains the
entire agreement between the parties. No promise, representation, or warranty not
included in this ENCROACHMENT AGREEMENT has been or is relied on by either
party. Each party has relied on its /his own examination of this ENCROACHMENT
AGREEMENT and the counsel of its /his own advisors.
10. Severability: The invalidity or illegality of any provision hereof shall not
affect the remainder of this ENCROACHMENT AGREEMENT.
11. Authority to Sign: Each individual signing this ENCROACHMENT
AGREEMENT represents and warrants that he /she has the authority to bind the parties
on whose behalf he /she is signing.
12. Costs: FEE OWNER agrees to pay DISTRICT's legal costs in creating
this ENCROACHMENT AGREEMENT and the engineering and any other costs in
preparing or processing this document within thirty (30) days of being presented with an
invoice therefor.
Dated this -31 day of t JaU 2013.
COSTA MESA SANITARY DISTRICT
ow." * , QL
Jam M. Ferryman
Pre ent
Arthur R. Perry
Secretary
APPROVED AS TO FORM:
Colin Burns
Associate District Counsel
t3
ERIC ROSENTHAL
Owner
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
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State of California /�
County of F-/ W T e'
On "71-; (0 A before me, 12,e C
Date /� ,Q / `I Here Insert Name antl Title of tha Officer
personally appeared F 2 j 1 / 1 as e A) L-
PHYLLIS D. BECK
Commission M 1954378
i yP Notary Public - Calilornia z
Orange Cowrty e
�•„R�� My Comm. Ex ires Oct 27, 2015
Place Notary Seal Above
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 /sheAhey executed the same in his /herAheir authorized
capacity(ies), and that by his /her /their signatures) 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 Califor that the foregoing paragraph is
orrect. / �
true and c
WITNESS my he (d nd official seal.
Signature �m �_
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(s)
Signer's Name:
❑ Individual
❑ Corporate Officer— Title(s):
• Partner — ❑ Limited ❑ General
• Attorney in Fact
❑ Trustee Top of ill here
❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
Number of Pages:
Signer's Nar
❑ Individual
❑ Corporate Officer — Title(s):
❑ Partner — ❑ Limited ❑ General
❑ Attorney in Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
RIGHTTHUMBPRINT
OF SIGNER
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