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HomeMy WebLinkAboutA8931 Coffee Gelato LLCPLEASE COMPLETE THIS INFORMATION RECORDING REQUESTED BY: City of Palm Springs AND WHEN RECORDED MAIL TO: AND MAIL TAX STATEMENTS TO: City of Palm Springs Attn: CITY CLERK PO Box 2743 Palm Springs, CA 92263 2021-0639331 Page 1 of 12 Recorded in Official Records County of Riverside Peter pldana 145sessor-County Clerk -Recorder Pursuant to Government Code Section 6103, Recording fees shall not apply. NO DOCUMENTARY STAMSP NEEDED TRA: 011-008 DTT: $0 OUTDOOR DINING ENCROACHMENT AGREEMENT Title of Document THIS OUTDOOR DINING ENCROACHMENT AGREEMENT SUPERCEDES & REPLACES DOC #2021-0538109 (09/09/2021) THIS PAGE ADDED TO PROVIDE ADEQUATE SPACE FOR RECORDING INFORMATION ($3.00 Additional Recording Fee Applies) ACR 238 (Rev. 01/2018) Available in Alternate Formats 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 21-04-0134 APN: 513-144-009 R A Exam: Page DA PCOR Misc Long RFD 1st PO Adtl Pg Cert CC SIZE NCOR SMF NCHG T: not apply OUTDOOR DINING ENCROACHMENT AGREEMENT THIS ENCROACHMENT AGREEMENT ("Agreement") is entered into this 3rd day of August, 2021, between Coffee Gelato CH LLC, a California Limited Liability Company ("Applicant"), whose address 190 E Tahquitz Canyon Way, Palm Springs, CA 92262 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 owner of that certain real property located at 134 S Palm Canyon Drive, in the City of Palm Springs, County of Riverside, State of California, 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 2 (two) 3'-0" (three feet) diameter tables, 2 (two) 6'-0" (six feet) diameter umbrellas (with concrete bases) and a minimum height clearance of 6'-6" (six feet- six inches,) and 8 (Eight) chairs, maintaining 6'-9" (Six - feet & nine -inch) sidewalk clearance, during normal business hours, 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 (LUP) #21-044, where this encroachment is reflected within. Said LUP was approved on July 8, 2021.City has agreed to grant to Applicant an encroachment permit 1 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 any time 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 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 communication 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. F1 IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first set forth above. Coffee Gelato CH LLC, a California Limited Liability Company By: Urs Wyler, Manager "Applicant" (APPLICANTS MUST HAVE SIGNATURE NOTARIZED) ATTEST: APPROVED AS TO FORM: reffrey-9OSallinger Palm Springs City Attorney CITY OF PALM SPRINGS, A California Charter City and Municipal Corporation j JLMin Clifton, M Palm Springs CitytyManager 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 _CAI I T 0rr) i 01 } COUNTY OF 1VerS*I J e)) SS On r Q`U tAsf 3rA 202before me, R c y m or,A ` A ' Notary Public, DATE I 1 personally appeared v\ rs V i I er who proved to me on the basis of satisfactory evidence to be the person() whose name is4w subscribed to the within instrument and acknowledged to me that he/shekhey executed the same in his/her0eir authorized capacity(res), and that by his/heMtheir signaturesN on the instrument the person'N, or the entity upon behalf of which the personN) 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) ------------ WITNE!S,SS m�yhand and official seal. RAYMOND L. ALI �yv D'IV` COMM. #2338735 p NDEARVPUBUC-GUFDRNIA m &WEDA(pBNIY Signature of Notary It Comm. Expires Now.27, 202/ 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 COUNTY OF } } SS } 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), dr 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. (Seal) WITNESS my hand and official seal. Signature of Notary EXHIBIT "A" A PORTION OF BLOCK 27 (SHOWN AS MRS. BROOKS) ON MAP OF PALM SPRINGS, MAP BOOK 009/PG 432, FILED NOVEMBER 1, 1887, OFFICIAL RECORDS OF SAN DIEGO COUNTY, CALIFORNIA. EXHIBIT "B" TWO AREA, EACH APPROXIMATELY 13 FEET LONG X 8 FEET WIDE WITHIN A PORTION OF PALM CANYON DRIVE (SHOWN AS MAIN STREET) ON MAP OF PALM SPRINGS, MAP BOOK 009/PG 432, FILED NOVEMBER 1, 1887, OFFICIAL RECORDS OF SAN DIEGO COUNTY, CALIFORNIA. EXHIBIT 11IC-111 ' BRANDINI TOFFEE COFFEE GELATO 132 S. Palm Canyon Dr, 134 S. Palm Canyon Dr. BUILDING LINE (E) AWNING (E; METAL RAILING �— (E) \ e a ELECT.PULLBOX- (E) LIGHT POLE (E) CONC. Sf Y1 I e d (E) AREA 2 - 3 ft. Dia Tables + 2 6 ft. Dia. Umbrellas w/ Concrete Base (Sht. C-2) + 8 Chairs SOUTH PALM CANYON CITY OF PALM SPRINGS ENGINEERING SERVICES LEGEND (E) = EXISTING CONDITION R.O.W. = RIGHT-OF-WAY BIRKENSTOCK COMFORT SHOES & SANDALS 138 S. Palm Canyon Dr. N U DR/ VE ELECT.PU BOX (E) LIGHT POLE (E) 3 O O U OUTDOOR DINING AGREEMENT 134 S PALM CANYON DRIVE SEE EXHIBIT "B" r FUP — N.T.S. I "'--Ek 21-01-0134 BY. JM ove07/12/21 WNo. 1 OF 2 EXHIBIT "C-211 FACE OF CURB,,,," 1 - 3 ft. Dia Tables + 1- 6 ft. Dia. Umbrellas w/ Concrete Base + 4 Chairs N (AT 2 LOCATIONS) > v f° A X SITION OF UMBRELLA ° a INTERLOCKING PAVER/PCC AREA P.C.C. SIDEWALK AREA ° + , Q in m PC CONCRETE BASE II 520—D-2500 h NOTE: A 3" 'MOE REFLECTIVE ORANGE STRIP SHALL BE PUT AROUND THE PC CONCRETE BASE. CITY OF PALM SPRINGS ENGINEERING SERVICES 2-1/2" DIA. X 12" GALV. PIPE SLEEVE 1/2" DIA. X 6" STEEL RETAINING PIN 3/8" DIA. STEEL LIFTING EYES 4" TYP . r 4" ^t #'30 REBAR LIFTING EYE DETAIL OUTDOOR DINING AGREEMENT 134 S PALM CANYON DRIVE SEE EXHIBIT "B" FUP N.T.S. I - "FA 21-W0134 JM I wE 07/12/211 smM 2 OF 2 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: August 3, 2021 From, CITY OF PALM SPRINGS a municipal corporation and charter city, Grantor, to Coffee Gelato CH LLC, a California Limited Liability Company, Grantee, is hereby accepted by the City Clerk of said City of Palm Springs, on this 28`s day of October, 2021, 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 28 h day of October, 2021.