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HomeMy WebLinkAboutA9146 - BMC FOODS LLC, DBA, I HEART MAC AND CHEESE (ENCROACHMENT AGREEMENT APN 508-081-003)PLEASE COMPLETE THIS INFORMATION RECORDING REQUESTED BY: AND WHEN RECORDED MAIL TO: City of Palm Springs Attn: City Clerk Box 2743 Palm Springs, CA 92263 EA 21-05-0190 APN: 508-081-003 2022-0291418 osi29/2022 12:47 PM Fee: $ 0.00 Page 1 of 11 Recorded in Official Records County of Riverside Peter Aldana Assessor -County Clerk -Recorder R F A Exam: 1st Page DA PCOR Misc I Long RFD Pg Adtl Pg Cert CC SIZE NCOR SMF NCHG T: ENCROACHMENT AGREEMENT THIS ENCROACHMENT AGREEMENT ("Agreement") is entered into this 23rd day of September, 2021, between BMC Foods LLC, a California Limited Liability Company, dba, I Heart Mac and Cheese ("Applicant"), whose address 190 S Indian Canyon Drive and the CITY OF PALM SPRINGS, a California Charter City and Municipal Corporation ("City"), whose address is PO Box 2743, 3200 E. Tahquitz Canyon Way, Palm Springs, CA 92263, Attn: Public Works and Engineering Department. RECITALS A. Applicant is the LESSEE of that certain real property located in the City of Palm Springs, County of Riverside, State of California, at 190 S Indian Canyon Drive, more particularly described on Exhibit "A" attached hereto and incorporated herein by reference ("Applicant Property"). City is the owner of certain fee and/or easement interests in that certain real property located in the City of Palm Springs, County of Riverside, State of California adjacent to the Applicant Property and more particularly described on Exhibit "B" ("City Property"). B. Applicant desires to place and maintain 2 (TWO) tables, 4 (FOUR) chairs, and approximately 20 feet of 36-inch high metal post and wire railing, leaving a minimum 5 feet wide walkway for pedestrians on the sidewalk, which are within City property and which encroachment area is more particularly shown on Exhibit "C" ("Encroachment). Applicant has applied to the Department of Planning Services for Land Use Permit #21-053 and was approved on November 2, 2021 where this encroachment is reflected within. City has agreed to grant to Applicant an encroachment permit ("Permit") for the Encroachment in accordance with Chapter 14.16 of the City of Palm Springs Municipal Code on the condition that Applicant executes this Agreement. NOW THEREFORE, the parties hereto agree as follows: 1.0 License. The City hereby grants to Applicant a license revocable or relocatable with or without cause at anytime by the City to construct and/or maintain the Encroachment upon all of the terms and conditions of the Permit and this Agreement ("License"). 2.0 Covenants 2.1 In General. Applicant hereby agrees to construct and maintain the Encroachment in accordance with Chapter 14.16 of the City of Palm Springs Municipal Code, as amended from time to time. 2.2 Maintenance. Applicant shall maintain, repair and replace the Encroachment and the City Property so as to keep the Encroachment and such area in a neat, clean, first class condition and in good order and repair, free of weeds, trash and debris at all times. Existing Encroachment location may not comply with current code and setback standards for the City. Any removal, replacement, or repair to the Encroachment must comply with current code and setback standards for the City. In the event Applicant does not maintain the Encroachment and the City Property as required herein, the City may terminate the License as more particularly provided in Section 4.0. 2.3 Indemnity. Applicant hereby agrees to indemnify and defend the City, its officers, agents and employees against and to hold and save each of them harmless from, any and all actions, suits, claims, damages to persons or property, losses, costs, penalties, obligations, errors, omissions or liabilities (collectively "claims or liabilities") that may be asserted or claimed by any person, firm or entity arising out of or in connection with the location, construction, maintenance, relocation or removal of the Encroachment, but excluding such claims or liabilities arising from the sole negligence or willful misconduct of the City, its officers, agents or employees, who are directly responsible to City, and in connection therewith: (a) applicant will defend any action or actions filed in connection with any of said claims or liabilities and will pay all costs and expenses, including legal costs and attorneys' fees incurred in connection therewith; (b) applicant will promptly pay any judgment rendered against the City, its officers, agents or employees for any such claims or liabilities and Applicant agrees to save and hold the City, its officers, agents and employees harmless therefrom; (c) in the event the City, its officers, agents or employees is made a party to any action or proceeding filed or prosecuted against Applicant for such damages or other claims arising out of the location, construction, maintenance, relocation or removal of the Encroachment, Applicant agrees to pay the City, its officers, agents or employees, any and all costs and expenses incurred 9 by the City, its officers, agents or employees in such action or proceeding, including, but not limited to, legal costs and attorneys' fees. 2.4 Covenants Running With the Land. The covenants and restrictions by Applicant set forth in this Agreement: (a) are made for the direct benefit of the City Property; (b) will constitute covenants running with the land and equitable servitudes; (c) will bind Applicant and every person having any fee, leasehold or other interest in any portion of the Applicant Property at any time or from time to time; and (d) will inure to the benefit of the City and every person having any fee, leasehold or other interest in the City Property at any time or from time to time. 3.0 Insurance. 3.1 Insurance Requirements. During the entire term of this License, Licensee shall procure and maintain public liability and property damage insurance, at its sole expense, in an amount not less than ONE MILLION DOLLARS ($1,000,000) combined single limit, insuring against all liability of Licensee and its authorized representatives arising out of and in connection with the Encroachment or Licensee's use of the Encroachment. Such public liability and property damage insurance shall also provide for and protect the Licensor against incurring any legal cost in defending claims for alleged loss. 3.2 Primary Policy; Additional Insured. All such insurance as required by this Section 6 shall be primary insurance and shall name the City as additional insured. 3.3 Insurance Increase. Not more frequently than one (1) time every three (3) years, if, in the opinion of the City Manager or the City's insurance broker, the amount of public liability and property damage insurance coverage at that time is not adequate, the City Manager may require modifications to this coverage. 3.4 Insurance Company. All insurance required under this Section 3 shall be issued by an insurance company authorized to do business in the State California, with a financial rating of at least A-3A status as rated in the most recent edition of Best's Insurance Reports or such comparable report should Best's Insurance Reports no longer be available. 3.5 Modification or Cancellation of Policy. All insurance required pursuant to this Section 8 shall contain -an endorsement requiring thirty (30) days written notice from the insurance company to both parties. before cancellation or change in the coverage, scope, or amount of any policy. Each policy, or a certificate of the policy, together with evidence of the payment of premiums, shall be deposited by Licensee with the City at the commencement of the term, and on a renewal policy not less than twenty (20) days before expiration of the term of the policy. 4.0 Termination. The License is terminable with or without cause by the City Manager or his designee at any time. Applicant shall remove the Encroachment and restore the City s Property to its former condition, at Applicant's sole cost and expense, within thirty (30) days of written notice from the City Manager. In the event Applicant fails to remove the Encroachment and restore the City Property within said time period, the City shall have the right to do so without notice. Applicant shall immediately reimburse the City for all expenses required to remove the Encroachment and restore the Property. Said amounts shall accrue interest from the date expended by the City at the maximum non -usurious interest rate permitted by law. 5.0 Miscellaneous. 5.1 Notices. Any notice; demand, request, document, consent, approval, or comm unication.either party desires or is required to give to the other party or any other person shall be in writing and either served personally or sent prepaid, first-class mail to the addresses listed on the first page of this Agreement. Either party may change its address by notifying the other party of the change of address in writing. Notice shall be deemed communicated at the time personally delivered or in seventy two (72)hours from the time of mailing if mailed pursuant to this Section 5.1. 5.2 Attorneys Fees. In any action between the parties hereto seeking enforcement of this Agreement, or in connection with" the License or the Permit, the prevailing party in such action shall be entitled to have and to recover from the other party its reasonable attorneys' fees and other reasonable expenses in connection with such action or proceeding in addition to its recoverable court costs. 5.3 Amendment or Modification. This Agreement may not be modified or amended except by written agreement executed by the then -owner of the Applicant Property and the City Property and recorded in the Office of the County Recorder, County of Riverside,. California. 5.4 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California. 5.5 Severability. The invalidity or unenforceability of any provision of this Agreement with respect to a particular party or set of circumstances shall not in any way affect the validity and enforceability of any other provision hereof or the same provision when applied to another party or to a different set of circumstances. 5.6 Recordation. This License shall be recorded in the Office of the County Recorder, Riverside County, California, and it shall serve as notice to all parties succeeding to the interest of Licensee or the city that their use of the Licensee Property and the City Property shall be benefited and/or restricted in the manner herein described. 4 IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first set forth above. ATTEST: N. - •.. 0. BMC Foods LLC, a California Limited Liability Company, dba, I Heart Mac and Cheese By. e� Blu Louie Bryan, Manager "Applicants" (APPLICANTS MUST HAVE SIGNATURE NOTARIZED) SIGNED IN COUN rRCWT Anthony Mejia, MMC Palm Springs City Clerk APPROVED AS TO FORM: Jeffr4 S. nger Palm Springs City Attorney CITY OF PALM SPRINGS, A California Charter City and Municipal Corporation • a VVustin Clift , ICMA-CM m Springs City Manager Aq►yb A notary public or other officer completing this certificate verifies only the identity of the individual who signed, the document, to which this certificate is attached, and not the truthfulness, accuracy, or validity. STATE OF } SS COUNTYOF VefSl je On StAt a2 3, d O;? , before me, Y2 C, c� Sh�}, j je��aN Z , NotaryPublic, DATE personally who proved to me on the basis of satisfactory evidence to be the personal whose name4OW subscribed to the within instrument and acknowledged to me that ne %he/they executed the same in is /lp6ir authorized capacity(i>a6), and that by is)4e/th#* signatures(ybn the instrument the - person ); or the entity upon behalf of which the personA 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. (Seal) WITNESS my hand and official seal. Signature of %P-OMO DEAICR SOLD HERNANDEZ NOUry PIi611c • California Rlverside Count Commission 0 2359325 y Comm. Expires May 28, 2025 A.notary public or other officer completing this certificate verifies only the identity of the individual who signed the document, to which this certificate is attached, and not the truthfulness, accuracy, or validity. STATE OF } } SS COUNTY OF } On , before me, DATE personally appeared, Notary Public, 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 - S is true and correct. (Seal) WITNESS my hand and official seal. Signature of Notary IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first set forth above. BMC Foods LLC, a California Limited Liability Company, dba, I Heart Mac and Cheese By ? C.- Blu Louie Bryan, Manager "Applicants" (APPLICANTS MUST HAVE SIGNATURE NOTARIZED) Palm Springs City Clerk APPROVED AS TO FORM: iN Jeffrey S. Ballinger Palm Springs City Attorney 5 CITY OF PALM SPRINGS, A California Charter City and Municipal Corporation Justin Clifton, ICMA-CM Palm Springs City Manager EXHIBIT "A" A PORTION OF LOT 26 ON THE AGUA CALIENTE RESERVATION MAP, DATED NOVEMBER 1948, WITHIN THE SOUTHWEST ONE -QUARTER OF SECTION 14, TOWNSHIP 4 SOUTH, RANGE 4 EAST, IN THE CITY OF PALM SPRINGS, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, EXHIBIT "B" A PORTION OF INDIAN CANYON DRIVE, SHOWN AS INDIAN AVENUE AND FRONTING LOT 26 ON THE AGUA CALIENTE RESERVATION MAP, DATED NOVEMBER 1948, WITHIN THE SOUTHWEST ONE -QUARTER OF SECTION 14, TOWNSHIP 4 SOUTH, RANGE 4 EAST, IN THE. CITY OF PALM SPRINGS, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, EXHIBIT 11C" NOTES: • = 2 (TWO) 30" Square tables, and 4 (FOUR) 16—Inch Chairs = TOTAL 2 Tables and 4 seats • 60—inch (5.0') min. ped walkway • Use ABC Compliant Dining Barrier. LEGEND: C/L RIGHT—OF—WAY CMIYON Arenas Road Z N NORTH CENTERLINE VICINITY MAP ROW PUBLIC RIGHT-OF—WAY F/C FACE OF CURB BLDG. BUILDING EX. EXISTING NORTH ST. STREET L.F. LINEAL FEET I Heart Daddy's Palm Springs Mac & Cheese Barbershop Bike Rentals 190 S Indian Cyn Dr L 192 S Indian Cyn Dr I 194 S Indian Cyn Dr I I I I • LANDSCAPE AREA• �. LANDSCAPE AREA T ` • � O I— _ T 36—Inch highUABC""5arne�EX. 20 LFHT �prox. O �iDO t CITY&'P" SEE BIKE RACKSE� m EX. PLANTER & PALM TREEPE EX. EL O O EX. CITYEX. PARKING STRIPING•. CITY OWN N F TRASH/RECYCLE CANS M J U S INDIAN CANYON DRIVE CITY OF PALM SPRINGS ENGINEERING SERVICES I HEART Mac and Chase 190 S Indian Canyon Drive OUTDOOR DINING ENCROACHMENT AGREEMENT °WNR FUP w'E NTS I 0"EN0FA21-a0190 Daaaosr. JM DAre 09/09120211 NETK 1OF1 CITY OF PALM SPRINGS OFFICE OF THE CITY CLERK 3200 E. Tahquitz Canyon Way Palm Springs, CA 92262 (760)323-8204 CERTIFICATE OF ACCEPTANCE THIS IS TO CERTIFY that the interest in real property conveyed by ENCROACHMENT AGREEMENT Real property in the City of Palm Springs, County of Riverside, State of California, as described: Land described in Exhibit "B" Dated: September 23, 2021 From. Is) gS`AMai7�7fuM2-11Qr ;l a municipal corporation and charter city, Grantor, to BMC foods LLC, a California Limited Liability Company, Grantee, is hereby accepted by the City Clerk of said City of Palm Springs, on this 23`d day of June, 2022, pursuant to authority granted by the City Council of said City, by Resolution No. 20255 made on the 16th day of January, 2002, and the Grantee consents to recordation thereof by the City Clerk, its duly authorized officer. Dated at Palm Springs, California, this 23`d day of June, 2021. BRENT RASI, DEPUTY CITY CLERK PM 6 IHEAR-1 OP ID: IC °A�`05/31/2022 1l2022 ,4cofzo CERTIFICATE OF LIABILITY INSURANCE THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT., If the certificate holder Is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WANED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights t0 the certificate holder in lieu of such endorsements . PRODUCER 415-567-7660 R Carrie Insurance Agency, Inc CA LIC 0001392 P.O. Box 16580 San Francisco, CA 94115 coNT?cT Irja Carrie PNONE 415-567-7660 FAx 747-208-6666 A/C, No : EE�AOAIL INSURER(S) AFFORDING COVERAGE NAICII Irja Carrie INSURER A: Sentinel Insurance Com an Ltd 11000 �NSURm dMG FOOds LLC INSURERS: INSURERC: DBA: I Heart Mac & Cheese Btu Bryan 25781sabella Way Palm Springs, CA 92262 INSURER D: INSURERS: INSURER F: COVERAGES CERTIFICATE NUMBER: REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR TYPEOFINSURANCE DL UBR pOLICYNUMBER POLICY EFF POUCYEXP LIMITS A A X COMMERCUILGENERALIABILOY CLAIMS -MADE �X OCCUR Primary X 57SBABO4102 05131/2022 05/3112023 EACH OCCURRENCE S 2,000,000 DAM SETO RENTED PREA a 1,000,000 X MEDEXP (Anyone taco S 5,000 X Non-contributory PERSONALS ADV INJURY $ 2,000,000 GENL AGGREGATE UMIT APPUES PER X POLICY jECDT LOC GENERAL AGGREGATE S 4,000,000 PRODUCTS - COMP/OP AGG 4,000,000 E OTHER A AUTONOBILELU1HILnY COM�BINdED SINGLE LIMIT feeANYADTO $ 2,000,000 BODILY INJURY Per S 57SBABO4102 05131/2022 05131/2023 BODILY INJURY Per accidenl S OWNED SCHEDULED AUTOS ONLY AUTOSWWryN X PerOadent AMAGE E Dp AUTOS ONLY X AUT090NLY E UYBRELIA LOUT OCCUR EACH OCCURRENCE S AGGREGATE $ EXCESS= CLMMS­MADE BED RETENTIONS WORKERS COMPENSATION ANDEMPLOYERS'TIABILTTY YIN ANY PROPRIETOR/PARTNERrEXECUTIVE ❑ OFRLERIMF(MBER EXCLUDED? INarWamry nNHI NIA SER OTH- E.L. EACH ACCIDENT $ EL DISEASE -EA EMPLOYEE $ Uyes, descries under DESCRIPTION OPERATIONS Below E.L. DISEASE -POLICY LIMIT S -OF DESCR°RIONOFOPERATIONS/LOCImONSIVEHICLES (ACORD 101. Addldonal Remarks SchedWe, may W Mashed If more space is regalred) Certificate holder is Additional Insured as respects to agreement for outdoor dining encroachment within City property. This Insurance Is primary & Non -Contributory to any other insurance. Location: 190 S. Indian Canyon Way, Palm Springs Ca 92262-6604. City of Palm Springs, its employees & representatives Felipe Primera 3200 E Tahquitz Canyon Way Palm Springs, CA 92262 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. ACORD 25 (2016103) 019BB-2015 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD