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HomeMy WebLinkAbout8/1/2001 - STAFF REPORTS (33) DATE: August 1, 2001 TO: City Council FROM: Director of Planning and Zoning SUBJECT: ENCROACHMENT LICENSE - 310 THROUGH 316 PALM CANYON DRIVE NORTH RECOMMENDATION: That the City Council approve the attached resolution approving an Encroachment License (subject to final approval of the license by the City Attorney)that would allow the construction/maintenance of building columns and entry tower within the City's right-of-way, located at 310- 316 Palm Canyon Drive North. SUMMARY: Staff recommends that the City Council approve the attached resolution approving an Encroachment License that would allow the construction/maintenance of building columns and entry tower within the City's right-of-way, located at 310- 316 Palm Canyon Drive North. BACKGROUND: The applicant,White Brothers Investments Company,is seeking approval from the City Council of an encroachment permitthatwould allowthe construction of seven(7)building columns,each measuring approximately 2 feet by 2 feet and an entry tower which projects 8.5 feet into the right-of-way. The sidewalk is 15 feet wide as measured from the face of curb to the right-of-way line (property line). The granting of the Encroachment License will permitthe Licenseeto constructthe above-referenced improvements within the city right-of-way in accordance with all the terms and conditions set forth in the Encroachment License. The standard form Encroachment License has been utilized. The Planning Commission reviewed and approved the proposed exterior improvements including the proposed encroachments at its regular meeting of June 13, 2001. Director dti'Planning and Building City Manager ° Attachments: 1. Encroachment License. 2. Resolution. /4h FREE RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: CITY OF PALM SPRINGS P.O. Box 2743 Palm Springs, California 92263-2743 Attn: City Clerk Engineering Division Filing Fee Exempt Per Government Code 6103 (For Recorder's Use Only) ENCROACHMENT LICENSE (ALL PROPERTIES OTHER THAN INDIVIDUAL RESIDENTIAL PROPERTIES) THIS ENCROACHMENT LICENSE (the "License" ) is entered into this 2nd day of May, 2001, by and between Bernard White d/b/a White Brothers Investments Company, a California General Partnership, ("Licensee" ) and the CITY OF PALM SPRINGS, a municipal corporation ( "City") . R E C I T A L S: A. Licensee is the owner of that certain real property located in the City of Palm Springs, County of Riverside, State of California commonly known as 310-316 Palm Canyon Drive North, (APN 513-081-014) , more particularly described on Exhibit "A" attached hereto and incorporated herein by reference ("Licensee Property") . B. 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 depicted on Exhibit "B" ( "City Property") . C. Licensee desires to construct building columns and entry tower which will encroach on the City property in the location depicted on Exhibit "B" attached hereto and incorporated herein by reference (the "Encroachment") . D. City has agreed to grant to Licensee 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 Licensee executes this License. 1 �L� 2 NOW THEREFORE, the parties hereto agree as follows : 1 . 0 License. The City hereby grants a License to Licensee to construct the Encroachment upon all of the terms and conditions of the Permit and this License. 2 . 0 Commencement of Construction. Licensee shall commence the construction of the Encroachment within a reasonable amount of time, in no event to exceed ninety ( 90) days following the execution date of this License . Before beginning any physical work on the Encroachment, Licensee shall notify the city that will be commenced, at least twenty-four (24 ) hours prior to commencement of such work. Licensee shall also notify the City upon completion of the Encroachment . 3 . 0 Construction of Encroachment. Any structure placed pursuant to this License shall be constructed in a careful and workmanlike manner and in accordance with plans and specifications to be submitted to and approved by the City of Palm Springs Department of Building and Safety before Licensee commences performance of any work on Licensee commences performance of any work on Licensee Property. 4 . Maintenance. Licensee shall have the right and obligation to maintain, repair and replace, at its own cost and expense, the Encroachment so as to keep the Encroachment area in a neat, clean, first class condition and in good order and repair, free of trash and debris at all times . Licensee shall have access across the City Property at all times while the License is in effect solely for the purposes as noted in Section 3 . In the event that Licensee does not maintain the Encroachment as required herein, the City will have the option to either (i) terminate the License as more particularly provided in Section 7 or, (ii) after giving Licensee reasonable notice, to make such repairs or perform such maintenance as is required. If City performs the required repairs and/or maintenance, City will submit a bill to Licensee who will promptly reimburse City for such work performed. 5 . Erection and Maintenance of Safety Provisions. Licensee shall, in connection with the construction and maintenance of the Encroachment, provide, erect, and maintain such lights, barriers, warning signs or other safeguards as are reasonably necessary to protect anyone utilizing the City Property for whatever reason. In the event that the City determines that suitable safeguards are not being provided, the City may, after reasonable notice to Licensee, 2 /b�4 3 provide, erect and maintain such safeguards . If the City provides the safeguards pursuant to this Paragraph 5, City shall submit a bill to Licensee, and Licensee shall immediately reimburse City for such work performed. 6. Indemnity. Licensee 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) Licensee 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) Licensee will promptly pay any judgment rendered against the City, its officers, agents or employees for any such claims or liabilities and Licensee 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 Licensee for such damages or other claims arising out of the location, construction, maintenance, relocation or removal of the Encroachment, Licensee agrees to pay the City, its officers, agents or employees, any and all costs and expenses incurred by the City, its officers, agents or employees in such action or proceeding, including, but not limited to, legal costs and attorneys fees . 7 . Covenants Running With the Land. The covenants and restrictions by Licensee set forth in this License: (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 Licensee and every person having any fee, leasehold or other 3 l`AY interest in any portion of the Licensee 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. 8 . Insurance. 8 . 1 Insurance Requirement. During the entire term of this License, Licensee agrees to 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 . 8 . 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. 8 . 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 . 8 . 4 Insurance Company. All insurance required under this Section 8 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 . 8 . 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 /G�4s 9. Termination. This License is terminable at such time when the City reasonably determines that the City Property or any part thereof will be used for a purpose which is nonconductive to the Encroachment, including but not limited to, construction, reconstruction or maintenance of the City Property. Upon making such determination, City shall give notice to Licensee that the License is thereby terminated (the "Termination Notice") . Upon termination of the Encroachment, Licensee shall remove the Encroachment and restore the City Property to its former condition, at Licensee ' s sole cost and expense, within ninety ( 90) days following the Termination Notice. In the event Licensee 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 to the Licensee by the City. Licensee shall immediately reimburse the City for all out of pocket expenses which were expended in order to remove the encroachment and restore the City Property. Said amounts shall accrue interest from the date expended by the City at the maximum legal rate of interest . 10. Notices. Any notice, demand, request, document, consent, approval, or communication either party desires or is required to be given under the provisions of this License shall be in writing and either served personally or sent prepaid, first-class mail to the following address : To City: City of Palm Springs PO Box 2743 Palm Springs, CA 92263-2743 Attn: Engineering Department Planning and Building Department With Copy to: Burke, Williams & Sorensen, LLP 18301 Von Karmen Ave. , Ste . 1050 Irvine, CA 92612-1009 Attn: David J. Aleshire, Esq. Licensee : Mr. Bernard White, General Partner White Brothers Investments Company 89-730 Hwy. 111, Suite 208 Rancho Mirage, CA 92270 Either party may change its address from time to time by notifying the other party of the change of address in writing. Notice shall be deemed communicated at the time personally delivered or in 5 iM6 seventy-two (72) hours from the time of mailing if mailed pursuant to this Section 10. 11 . Attorneys Fees. In any action between the parties hereto seeking enforcement of this License, 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 . 12 . Successors and Assigns . All rights and obligations created by this License shall be appurtenant to and shall run with the License Property and the City Property and each part thereof and interest thereon, and shall be binding upon the owners of the Licensee Property and its respective successors and assigns acquiring any right, title and interest in the Licensee Property. 13 . Amendment or Modification. This License may not be modified or amended except by written agreement executed by the then-owner of the Licensee Property and the City Property and recorded in the Office of the County Recorder, County of Riverside, California. 14 . Governing Law. This License shall be governed by and construed in accordance with the laws of the State of California. 15 . Severability. The invalidity or unenforceability of any provision of this License 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 . 16. 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 benefitted and/or restricted in the manner herein described. 17 . Counterparts. This License may be executed in any number of counter parts, each of which shall constitute an original . 6 4 47 IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first set forth above . "L NSEE" By: .� � Hernar White Its : General Partner (Licensee shall have signature notarized) ATTEST: CITY OF PALM SPRINGS, a municipal corporation By: By: City Clerk City Manager APPROVED AS TO FORM: Burke, Williams & Sorensen, LLP City Attorney APPROVED BY CITY COUNCIL: By: Its : Resolution No . : &II V STATE OF CALIFORNIA) SS . COUNTY OF RIVERSIDE) On May 8 , 2001 before me, Sandra S . Fox Date Notary Public, personally appeared Bernard White personally known to me OR ❑ 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 y OFFICIAL SEALthat he/she/they executed the same in 5AN©RA S. PDX COMM#1175239 n his/her/their authorized capacity (ies) , {f ' Notary Public-California9 and that by his/her/their signature (s) on RIVERSIUECOUNTY My Commission Expires the instrument the person (s) , or the APRIL 1, 2002 entity upon behalf of which the person (s) acted, executed the instrument . WITNESS my hand and official seal . � J. NOTARY' S SIGNATURE (SEAL) STATE OF CALIFORNIA) SS . COUNTY OF RIVERSIDE) On before me, date Notary Public, personally appeared ❑ personally known to me OR ❑ 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 signature (s) on the instrument the person (s) , or the entity upon behalf of which the person (s) acted, executed the instrument . WITNESS my hand and official seal . NOTARY' S SIGNATURE (SEAL) EXHIBIT "A" DESCRIPTION OF LICENSEE PROPERTY Portion of Lot 8, Block 24 of Townsite of Palm Springs as recorded in Map Book 9, Page 432, San Diego county, California. Beginning at a point 54 feet north of the Northeast corner of Amado Road (Lemon Street) and Palm Canyon Drive North (Main Street ) , as shown on said map; Thence North 100 feet; Thence East 145 . 2 feet; Thence South 100 feet; Thence West 145 . 2 feet to the Point of Beginning. 10 Moo# /d d - ro H EXISTING RETAIL SP EXISTING RETAIL SP "?6.6 SO.FT. H JDED AT LOWER FLOOR em.c EXISTNG-RETAIL S= O ADDED -- 14 Sal FT. € H ADDED ., K .d x ----- - -------- --- ------ ! - H Id ---- e a Y K m 0 � � n H FLOOR PLAN 31m - 31G N. PALM CANYON �R. 5m2 SQ. FT. ADDED TO BL�Cs RESOLUTION NO. 20145 OF THE CITY COUNCIL OF THE CITY OF PALM SPRINGS, CALIFORNIA, APPROVING A REQUEST FOR AN ENCROACHMENT LICENSE BY WHITE BROTHERS INVESTMENTS COMPANY TO ALLOW THE CONSTRUCTION OF BUILDING COLUMNS AND ENTRY TOWER, WITHIN THE CrrCS RIGHT-OF-WAY LOCATED AT 310-316 PALM CANYON DRIVE NORTH, CBD ZONE, SECTION 15, T 4 S, R 4 E. WHEREAS, White Brothers Investments Company, ("the applicant") has filed a request for an encroachment license that would permit the construction of building columns and entry tower,within the City's right-of-way; and WHEREAS, on June 13, 2001, a hearing on the request was held by the Planning Commission in accordance with applicable law; and WHEREAS, in June 13, 2001,the Planning Commission voted to recommend that the City Council grant an encroachment license; and WHEREAS, the City Council is in agreement that the City of Palm Springs should grant an Encroachment License to the Licensee in accordance with Chapter 14.16 of the City of Palm Springs Municipal Code on the conditions that such encroachment is executed by the licensee. NOW THEREFORE BE IT RESOLVED that the City Council of the City of Palm Springs, California, does hereby approve the Encroachment License in the form on file in the office of the City Clerk to allow an encroachment on the City right-of-way, on the above referenced improvements. ADOPTED THIS 1st day of August 2001. AYES: Members Jones, Oden, Reller-Spurgin and Mayor Kleindienst NOES: Member Hodges ABSTAIN: None ABSENT: None ATTEST: CITY OF PALM SPRINGS, CALIFORNIA By City Clerk City Manager REVIEWED &APPROVED AS TO FORM: k 11 ll `4g