HomeMy WebLinkAboutA4655 - STARBUCKS COFFEE COMPANY OUTDOOR DINING ENCROACHMENT AGR DOC 2001--OS40S2
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Recorded in Official Records
County of Rlverslde
Cary L. Orso
Assessor, County Clerk d Recorder
ANDEWHRECORDINGEN RECORDED�MAILETOBY
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CITY OF PALM SPRINGS M S U PAGE 52E On PCOR NOCOR WF MIGG
PO Sox 2723 0
Palm Springs, CA 92263 /
Attn: Engineering Division
City Clerk A R L COPY LONG REFUND NCHC EY
FILING FEE F—KEMPT PER cO&',FJ Nr COVE 4103
OUTDOOR DINING ENCROACHMENT AGREEMENT
THIS ENCROACHMENT AGREEMENT ("Agreement") is entered into this
13"h day of September, 1999, by and between Starbuck' s Coffee
Company, ("Applicant") , whose address is 101 Palm Canyon Drive South,
Palm Springs, CA 92264, and the CITY OF PALM SPRINGS, a municipal
corporation ("City") , whose address is PO Box 2743 , 3200 E. Tahquitz SF
Canyon Way, Palm Springs, CA 92263, Attn: Department of Building and
Safety.
R E C I T A L S :
A. Applicant is the owner of that certain real property
located in the City of Palm Springs, County of Riverside, State of
California commonly known as 101 Palm Canyon Drive South, Palm
Springs, California 92264, (APN 513-143-009) , 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 in
Exhibit "B" hereto ( "City Property" ) ,
B. Applicant desires to construct or maintain 27 chairs and
9 tables to be placed in the public right-of-way more specifically
described in Exhibit ""C"" hereto an the City property
( "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 :
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, frce 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 .
1
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
ag ixist 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 ❑r
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 . 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 ❑f 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.
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3 .4 Insurance Company. All insurance required under this
Section S 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 Secti= B 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 thEp- City at any time. Applicant skull 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 out of pocket
expenses expended 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 'nay 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 C-ity 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 .
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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 benefitted and/or restricted in the manner
herein described.
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date first set forth above .
Starbucck'' s Coffee Company
By: Gila �Gy
It ' s : QEr t0"AOVP.DPEzT`1 hAiw)e-,L" '.
P "Applicant"
(APPLICANT MUST HAVE SIGNATURE NOTARIZED)
CITY OF PALM SPRINGS, a
municipal corporation
By;
City Engineer
"City"
(CITY ENGINEER MUST HAVE SIGNATURE NOTARIZED)
APPROVED AS TO OWNERSHIP &
LEGAL DESCRIPTION
By:-n?a41vr4 U/" dLm
(NOTARY STATEMENTS ON FOLLOWING PAGE)
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STATE OF CALIFORNIA)
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COUNTY OF S4-VRR;9:�) n%Zf�aGG
Ong ft 3 . don before me,
date
personally appeared 0
-Pfatrsonally known to me OR roved to me on the basis of
satisfactory evidence to be the person
whose name is subscribed to the within
instrument and acknowledged to me that he
executed the same in his authorized
capacity, and that by his signature on the
instrument the person, or the entity upon
h behalf of which the person acted, executed
AMTAS.SUMMERS
the instrument .
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ORANGE COUNTY _ n
My C°mm Ems.Nov.6.2003 .� � wtii�YtStI.
Signature of Notary
(SEAL)
For Use By Declarant
STATE OF CALIFORNIA)
SS .
COUNTY OF RIVERSIDE)
On before me,
date
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 (iss) ,
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_
Signature of Notary
(SEAL)
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STATE OF CALIFORNIA)
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COUNTY OF RIVERSIDE)
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Signature of Notary
(SEAL)
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EXHIBIT "Al'
LEGAL, DESCRIPTION OF OWNER/APPLICANT PROPERTY
1 .35 Acres M/L in Lots I through 10, 37 and the east 16 feet of Palm
Avenue (now known as Relardo Road South) in Map Book 9, Page 432
Townsite of Palm Springs recorded in San Diego County Recorder' s
Office, San Diego County, California.
EXHIBIT "A"
TO OUTDOOR DINING ENCROACHMENT AGREEMENT
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EXHIBIT "B"
DESCRIPTION OF PUBLIC RIGHT-OP-WAY
That portion of Tahquitz Canyon Way West dedicated to the public
right-of-way, as shown in records of the San Diego County Recorder,
Book 9, Page 432 in San Diego County, California and Grant of
Dedication recorded in the Riverside County Recorder' s Office on
.April 16, 1964 as Instrument No, 47222 ,
EXHIBIT "B"
TO OUTDOOR DINING ENCROACHMENT AGREEMENT
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EXHIBIT "C" CONT'D. 2 of 2
PERMIT CONDITIONS FOR OUTDOOR DINING
1 . Seating within the new paved area shall be subject to a Land
Use Permit (or amendment to existing LUP) and approval by the
Director of Planning and Zoning prior to installation of any
seating in the newly paved area_
2 _ Seating within the new paver area shall be limited to non-
alcoholic beverages and food services only.
3 . To provide adequate pedestrian circulation, each table shall
seat two persons only. Additional seating per table shall
require the approval of the Director of Planning and Building.
4 . Tan, green and terra cotta colors shall be used for all outdoor
furnitui;p.
5 _ No additional product advertising shall be permitted on the
outdoor umbrellas_
6 . Outdoor seating areas shall be washed down daily.
7 . Outdoor seating within the new paver area shall be permitted
for restaurants or other beverage service uses that have
immediate or direct frontage on Palm Canyon drive in the Center
Business District_
8 . All outdoor furniture shall be set back a minimum of two (2)
feet from the face of curb. Umbrellas shall be properly secured
to prevent any harm as per City of Palm Springs Std_ Dwg. 910
(attached) .
9 _ All outdoor umbrellas shall be a minimum of 6-1/2 to 7 feet
(installed) in height, measured from sidewalk.
10 . All outdoor furniture on City property shall be removed at the
end of each business day.
11_ A minimum width of five (5) feet shall be kept free at all
times for pedestrian traffic along the entire property
frontage.
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