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CQ<fFORN`P CITY COUNCIL STAFF REPORT
October 7, 2015
CONSENT AGENDA
Subject: APPROVAL OF AN ENCROACHMENT LICENSE ISSUED TO DEAD OR
ALIVE LLC, FOR CERTAIN PRIVATE IMPROVEMENTS LOCATED 150
E. PALM CANYON DRIVE, IN SECTION 23, TOWNSHIP 4 SOUTH,
RANGE 4 EAST; ENGINEERING FILE ENCROACHMENT LICENSE (EL)
15-01.
From: David H. Ready, City Manager
Initiated by: Public Works and Engineering Department
SUMMARY
Approval of this item will approve the issuance of an Encroachment License to Dead or
Alive LLC, for installation of an overhead light fixture on an existing building soffit
overhang with lighting, and a wrought iron fence for patrons for the property located at
150 E. Palm Canyon Drive.
RECOMMENDATION:
1) Approve Agreement No. ; an Encroachment License between the City of
Palm Springs and Dead or Alive, LLC, a California Limited Liability Corporation, for
installation of an overhead light fixture on an existing building overhang, with existing
lighting, and a wrought iron fence located in the public right-of-way located at 150 E.
Palm Canyon Drive; and
2) Authorize the City Manager to execute all necessary documents
STAFF ANALYSIS:
Chapter 14.16 of the Palm Springs Municipal Code requires an encroachment permit to
be issued for any improvements constructed in the public right-of-way. Additionally,
whenever other improvements of a type of use determined by the City Engineer to
require additional liability protection for the City, a formal agreement through an
Encroachment License is required.
ITEM NO. A-Q
City Council Staff Report
October 7, 2015 - Page 2
Encroachment License for Dead or Alive LLC
On August 25, 2015, Christine Soto, managing member of Dead or Alive LLC,
submitted an application to the Engineering Department to place an overhead light
fixture and a wrought iron fence in front of her proposed establishment, the Dead or
Alive Lounge located at 150 E. Palm Canyon Drive. The property/right-of-way line is
located 18 feet from the face of curb, which places it approximately 2 feet in front of the
doorway to the establishment (shown as Exhibit C-1 of the License). The building suite
is located adjacent to, and south of, the Mirasol Mexican Restaurant along the curve
from South Palm Canyon Drive to East Palm Canyon Drive. Field review revealed an
existing building overhang with existing lighting along with the proposed improvements
encroaching into City right-of-way (shown as Exhibit C-2 of the License). The proposed
light fixture would encroach approximately 10 feet into the right-of-way (shown as
Exhibit C-3 of the License).
On September 9, 2015, the Planning Commission reviewed and unanimously approved
Conditional Use Permit (Case 5.1381 CUP) to operate a beer and wine lounge at the
property located at 150 E. Palm Canyon Drive. The CUP permits seating for three (3)
patrons in the patio area, a portion of which is within City right-of-way (as shown as
Exhibit C-2). On September, 16, 2015, the City Council reviewed and unanimously
approved the Resolution of Convenience or Necessity allowing the issuance of a license
to serve beer and wine at this location.
The applicant has obtained and provided the required indemnification and insurance
coverage stipulated by the License. Staff recommends approval of the Encroachment
License to Dead or Alive, LLC, allowing the encroachment of the certain private
improvements into the public right-of-way located at 150 E. Palm Canyon Drive.
ENVIRONMENTAL IMPACT:
Section 21084 of the California Public Resources Code requires Guidelines for
Implementation of the California Environmental Quality Act ("CEQA"). The Guidelines
are required to include a list of classes of projects which have been determined not to
have a significant effect on the environment and which are exempt from the provisions
of CEQA. In response to that mandate, the Secretary for Resources identified classes
of projects that do not have a significant effect on the environment, and are declared to
be categorically exempt from the requirement for the preparation of environmental
documents. In accordance with Section 15301 "Existing Facilities," Class 1 projects
consist of the operation, repair, maintenance, permitting, leasing, licensing, or minor
alteration of existing public or private structures, facilities, mechanical equipment or
topographical features involving negligible or no expansion of use beyond that existing
at the time of the lead agency's determination. Therefore, installation of the private
improvements authorized by the Encroachment License is considered categorically
exempt from CEQA.
FISCAL IMPACT:
None
02
City Council Staff Report
October 7, 2015 - Page 3
Encroachment License for Dead or Alive LLC
SUBMITTED:
Prepared by: Approved by:
Marcus L. Fuller, MPA, P.E., P.L.S. David H. Ready, Esq., r
Assistant City Manager/City Engineer City Manager
ATTACHMENTS:
1. Vicinity Map
2. Encroachment License
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ATTACHMENT 1
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ATTACHMENT 2
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FREE RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
CITY OF PALM SPRINGS
PO Box 2743
Palm Springs, CA 92263-2743
Attn: Engineering Division
City Clerk
Filing Fee Exempt Per Government Code 6103
EL 15-01
(For Recorder's Use Only)
ENCROACHMENT LICENSE
THIS ENCROACHMENT AGREEMENT ("Agreement") is entered into this _ day of
, 2015, by and between Dead or Alive LLC, a California Limited Liability
Corporation ("Applicant"), whose address is 536 S. Calla Santa Rosa, Palm Springs, CA
92264-7414 and the CITY OF PALM SPRINGS, a California charter city and Municipal
Corporation ("City"), whose address is P.O. Box 2743, 3200 E. Tahquitz Canyon Way, Palm
Springs, CA 92263.
RECITALS:
A. Applicant is the lessee of that certain real property located in the City of Palm Springs,
County of Riverside, State of California commonly known as 160 E. Palm Canyon Drive,
Palm Springs, CA 92264-8822 (APN 508-346-015) 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 encroachment is more particularly described in Exhibit "B" hereto ("City Property").
B. Applicant desires to maintain a 36" high wrought iron fence, 2 foot diameter light
fixture to be placed in a portion of the public right-of-way hereto on the City property which
encroachment is more particularly show on Exhibit "C-1", "C-2" AND "C-3"
("Encroachment"). 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:
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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, maintain, relocate and
remove 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. All
tables, chairs, or other items shall be kept in a clean, safe condition, and shall not be placed
in a manner that impedes or prevents pedestrian traffic. 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 3.0.
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
attomeys' 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 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 forthe direct benefit of the City Property;
1•A
(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 Requirement. 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 propertydamage insurance shall also provide for and protectthe Licensoragainst
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 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.
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 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. 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
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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 4.1.
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 anyway 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.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first set
forth above.
Dead or Alive Bar LLC, a California Limited
Liability Corporation
Christine Soto
(NOTARY STATEMENT ON FOLLOWING PAGE)
ATTEST:
James Thompson, City Clerk
City of Palm Springs, CA
APPROVED AS TO FORM:
Douglas Holland, City Attorney
City of Palm Springs, CA
5
"Applicant"
CITY OF PALM SPRINGS, A California
Charter City and Municipal Corporation
David H. Ready, City Manager
City of Palm Springs, CA
APPROVED BY CITY COUNCIL:
Date
Agreement No.
11
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 of that document.
STATE OF CALIFORNIA
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 helshelthey executed the same in his/herllheir authorized capacity(ies), and that by hisfherltheir signatures(s) on the
instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
1 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
A notary public or other officer completing [his 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 of that document.
STATE OFCALIFORNIA
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(les), 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 Stale of California that the foregoing paragraph is true and
correct. (Seal)
Witness my hand and official seal
Signature of Notary
0
12
BE
EXHIBIT "A"
LEGAL DESCRIPTION OF APPLICANT PROPERTY
A PORTION OF LOT 16 AND LOT 17, BLOCK G, SHOWN ON MAP OF PALM HIGHLANDS,
ON FILE IN BOOK 19, PAGE 10 OF MAPS, RECORDS OF COUNTY OF RIVERSIDE,
CALIFORNIA.
13
EXHIBIT "B"
LEGAL DESCRIPTION OF CITY PROPERTY AND ENCROACHMENT
A 10 FT.WIDE X 30 FT. LONG AREA, WITHIN EAST PALM CANYON DRIVE, SHOWN AS
LOT A, -AND DESIGNATED AS. STATE HIGHWAY, ADJOINING LOTS 16 AND 17, BLOCK
G, ON MAP OF PALM HIGHLANDS, ON FILE IN BOOK 19, PAGE 10 OF MAPS, RECORDS
OF COUNTY OF RIVERSIDE, CALIFORNIA.
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Por. Lot 16 & 17, Block G, MB 0191010, PALM H1GHLANDS, R.C.R.
ENCROACHMENT AGREEMENT
150 E. PALM CANYON DRIVE
LOCATION PLAN
DESIGN BY:
SCALE:
FILE NO.:
FUP
NTS
EL 15-01
CHECKED BY:
DATE
SHEET NO.:
MLF
09/14/15
1 OF 3
. L EXHIBIT "C-211
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PROPERTY LINE
PATIO
OVERHANG LINE (E)
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LIGHT FIXTURE
EAST ELEVATION
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(E) = EXISTING CONDITION
RIGHT-OF-WAY/
PROPERTY LINE
10'
2-FT. DIA.
LIGHT FIXTUR
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VSOFFIT
OVERHANG
W/LIGHTING (E)
50' R
18,
5'-6" 1 12'-6"
SOUTH ELEVATION
Por. Lot 16 & 17, Block G. MB 0191010, PALM HIGHLANDS, R.C.R.
DESIGN BY:
ENCROACHMENT AGREEMENT FUP
150 E. PALM CANYON DRIVE
PLAN ELEVATIONS CHECKED BY:
VILF
32'
16
SCALE:
FILE NO.:
NTS
EL 15-01
DATE
SHEET NO.:
09/14/15
2 OF 3
EXHIBIT "C-3"
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ENCROACHMENT AGREEMENT
150 E. PALM CANYON DRIVE
LIGHT FIXTURE DETAIL
DESIGN BY:
FUP
CHECKED BY:
MLF
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SCALE:
NTS
DATE
09/14/15
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FILE NO.:
EL 15-01
SHEET NO.:
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