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HomeMy WebLinkAbout04658 - CAPRA'S INC OUTDOOR DINING ENCROACHMENT AGR AT 204 NPC Page 1 of 1 Cindy Berardi From: Felipe Primera Sent: Wednesday, January 07, 2009 11:44 AM To: Cindy Berardi; Kathie Hart Subject: RE: Encroachment Agr. Yes—you may close out the file.Any new business that needs outdoor dining will have to apply for a new Encroachment License anyway. Sincerely, Felipe Primera, Engineering Assistant City of Palm Springs Engineering Dept. PO Box 2743 Palm Springs, CA 92263-2743 Direct(760) 323-8253 X8742 Fax (760) 322-8325 CONFIDENTIALITY NOTICE—This e-mail transmission,and any documents,files or previous e-mail messages attached to it may contain Information that is confidential or legally privileged.If you are not the Intended recipient,or a person responsible For dehvenng it to the intended recipient,you are hereby notified that you must not read this transmission and that any disclosure,copying,printing,distribution or use of any of the information contained in or attached to this transmission is SrP=LY PROHIBITED, If you have received this transmission in error,please immediately notify the sender by telephone at(760)323-8253 X8742 or return a-mail and delete the original transmission and its aIIachrrants without reading or saving in any manner From: Cindy Berardi Sent: Wednesday, January 07, 2009 11:38 AM To: Felipe Primera Subject: Encroachment Agr. I'm reviewing Encroachment Agreement#A4657 with Elizabeth DeSantis and Kris Capra dba Capra's Inc.for outdoor dining at 124 N, Palm Canyon APN 513-091-008. 1 know the business is closed, no other restaurant is in there, and the building has been sold; however, Kathie wants direction from Engineering if we are to close out the file. I attached the agreement in case you wanted to see it. So what do you say? Thank pyou. CinJy L]crarcli Dcruty City Clerk r ( �L✓S / ��� ofa lee of the City Clerk 5 vw City of Palm Springs P. O. Box 2743 Palm Springs, CA 92262 (760) 322-8355 V Cindv.8erardi@palmsorinasca.aov1,� 1/7/2009 p ss 2002-3g1040 i/33/2002 08:00R Fec:NC page 3 of 33 RecaCounty of f Records Riverside FREE RECORDING RFQUESTED DY L. Orso AND WHEN RECORDED MAIL TO: GaryClerk a Recorder CITY OF PALM SPRINAssessor, Counklll lllllll lll�I III�IIII IIII III PO 3ox 2743 �C' IIA�IIII�IIII�IIIII�III� Palm Springs, CA 9�ryI� r27 Attn: Engineerin Il�,]�,�1 SS I S U PAGE 51LE OA PCOR NOCCP *MF MSC City Clerk On 7 2 0 ,2 REFNNO N.^.HC E)— Filing Fee Exempt Per Governmento""d'�'�C (For Recorder's Use Only) OUTDOOR DINING ENCROACHMENT AGREEMENT �(S THIS ENCROACHMENT AGREEMENT ("Agreement") is enter � to this day of )l� 2002, by and between Tom Capra and Capra d/b/a Capra' s Inc. , ("Applicant") , whose address is 204 Palm Canyon Drive North, Palm Springs, CA, and the CITY OF PALM SPRINGS, a municipal corporation ("City") , whose address is PO Box 2743, 3200 E. Tahguitz 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 204 Palm Canyon Drive North, Palm Springs, California 92262, (APN 513-091-008) , 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 an more particularly described in Exhibit "B" hereto ("City Property R. Applicant desires to construct or maintain a (n) 12 chairs and 6 tables and 32 feet of 4 foot high wrought iron fencing to be placed in the public right-of-way more specifically described in Exhibit "C" hereto on 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 1 . 0 License. The City hereby grants to Applicant a license revocable or relccatable 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 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; 2 ICI I III III IN 11111111111111111111111111111 II 07 11 2002106 OGF1 2 of 11 (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 Lhe 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 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 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 8 shall be issued by an insurance company authorized to do 3 II II 11111 IN11111111111111111 III1IIII II I1 11 07/11� 2©E 08�00R 9 P4 t y 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 Is 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 befoxe 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 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 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 4 2©©2-'31949 IIIIIIIIIIIIIIIIIINIIIIIIIIIII1I 07f111 4 08 �PR I IIIIIIIIIIIIIIIIIIII 3 and other reasonable expenses in connection with such act:Lcn of 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 Severabi.lity. 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 benefitted and/or restricted in the manner herein described. 5 II II ar 2©�50 fla�fDa, IN WITNESS WHEREOF, the parL-ies have executed this Agreement as of the date first set forth al7ove . �II Tom Capra Capra 1�12ira "Applicants" (APPLICANT MUST HAVE SIG NOTARIZED) CITY OF PALM SPRINGS, a municip:r/3 r t,. on By City Engineer "City" (CITY ENGINEER MUST HAVE SIGNATURE NOTARIZED) APPROVED AS TO OWNERSHIP & LEGAL DESCRIPTION By: 1MO-wa Uajl 4nm (NOTARY STATEMENTS ON FOLLOWING PAGE) 6 2d©2-3FIg40 IIIIIIIIIIIIIll$IIIIIIIIIIII1$111111IIIIIIIIII 111 a.11t 6ins 11 HOP STATE OF CALIFORNIA) SS. COUNTY OF RIVERSIDE) / / On er date z7C� before me. WGp/// personally appeared proved to me on the basis of sa•isfactory evidence / to be the persor4l whose names subscribed to th within instrument and c]Qnow.ledged to me that -he - r rn ELAINE L. WEDEKINDZ executed he same in authorized capaci L•�,�and U COMM,91206984 ewn. ^NOTARY Pl16LIC-CALIFORNIA6) that by —signature on the .Lnsr rument the person,5' RIVERSICr;COUNTY 0 or the entity upon behalf of which the persons COMM.E%P.FE8.3,2003 1 acted, executed the instrument. (SEAL) witness my hand and official seal- Signatureof Not y STATE OF CALIFORNIA) S5. COUNTY OF RIVERSIDE) ` On �j�,Alir 1 , o0L7Oa before me, Cary-'ve. RQjn ND'1'0.Jl �V.�C]�•c' , date personally appeared E)cxVyd la L rG-yw-(A GYpersonally known to me a - 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 CARRIEFtOVNEy that by his signature on the instrument the person, Commlulon01348457 or the entity upon behalf of which the person `z Notary Pu611c-Calffomis R"raideCounty acted, executed the instrument. MyComm.E)*eaMar26,20176 Witness my hand and official seal. 4=24of Notary 7 IIIIII IIIIII AAlll IIII i�lll IIIIII II I III III I III III 87/11/2 02 a9 00A 7 of i i EXHIBIT "A" LEGAL DESCRIPTION OF OWNER/APPLICANT PROPERTY The west 90 feet- of Lot 23, Black 25 Townsite of Palm Springs as shown on map of file in Book 9, Page 432 of Maps, in the office of the San Diego County Recorder, California . EXHIBIT "A" TO OUTDOOR DINING ENCROACHMENT AGREEMENT 9 �II 11 �I IAAI A 1 11 1 Al I 111111111 II n: 2�A8 o81���nen EXHIBIT "B" DESCRIPTION OF PUBLIC RIGHT--OF-WAY That portion of Palm Canyon Drive North dedicated tc the public right-of- way, as shown on/in records of the San Diego County Recorder, Book 009, Page 432 in San Diego CounL-y, California. EXHIBIT "S" TO OUTDOOR DINING ENCROACHMENT AGREEMENT 10 111111111 IN Pr 20E s�rI 11 osReOFl EXHIBIT "C"I of 2 DEPICTION OF CITY PROPERTY AND ENCROACHMENT INCLUSIVE OF PERMIT CONDITIONS 05 /JJ 44r �(L0�4/?.TK '(o �p^vVR(3F T I l,lN� rr aF + I� rtiNCING � I�' ff r WS�F oaC� 4 C j D � Z F6a�la(n _4M ' t4.NINLI A -j qu 3 a� I� vi V I Q CL I 9� aF lol— Z7i 4 tUV�V VALM -Tat �M Q CA►PRAS'� E04 N. PALIWIW ClAt i, 111111111111 IIIII 111111111111111111111111111111111 IIII 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 furniture. 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. 12 IIIIII IIIIII III I IIII II II I IIII IIII� II��II III 0 G7 1� 2 02£08GOA