HomeMy WebLinkAbout04657 - CAPRA'S INC OUTDOOR DINING ENCROACHMENT AGR AT 124 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
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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 you.
Cincy F)crardi
DrrPuty Clky Clerk
[o
ffice of tile City Clark
City of Palm Springs J d
P, 0, Box 2743
Palm Springs, CA 92262 15-
(760) 322-8355
Cindy.Berard lEo_palmspringsca.gov
1/7/2009
- -^ Doc ss ySW4s0596
11/02/1999 08: Fee:NC
Page 1 of 9
Recorded in Official Records
' County of Riverside
Cary L.
=ORDING REQUESTED BY Assessor. County Clark
erk & Recorder
..,..., ..riEN ',RECORDED MAIL T0: I IIIIII Illiil IIIII Iiiill IIIII III Iiiilli III IIIII iill IIII CITY OF PALM SPRINGS
PO Box 2743
Palm springs, CA 92263
Attn: Engineering Division m s PAGE s¢[ ow POOR NDcoR vmF mrsc
City Clerk "(
A R L COPY LONG R�FpNC Nc"G Fxun
OUTDOOR DINING ENCROACHMENT AGREEMENT
THIS ENCROACHMENT AGREEMENT ("Agreement") is entered into this
13tr' day of September, 1999, by and between Elizabeth DeSantis and SC
Kris Capra d/b/a Caprals, Inc. , ( "Applicant") , whose address is 204
Palm Canyon Drive North, Palm Springs, CA 92262, and the CITY OF PALM
SPRINGS, a municipal corporation ("City" ) , whose address is PO Sox
2743 , 3200 E. Tahquitz 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 124 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 and more particularly described in
Exhibit "B" hereto ( "City Property") .
B_ Applicant desires to construct or maintain 14 chairs and
7 tables 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 . 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 .
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
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 cut 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
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 Ixxcrease. Not more frequently than one (1)
time every three (2) 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 .
I I I I 1389-480596 2
lv
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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 nest ' 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 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 ncn-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 2s
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 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 .
IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII 11f 2999 9�986ae�
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.
Capra' s, Inc .
Elizabeth DeSantis
K 4t�(3w�
°.Applicants°
(APPLICANT MUST HAVE SIGNATURE NOTARIZED)
CITY OF PALM SPRINGS, a
Muni al Corporation
By:
�r
City Engineer
"City"
(CITY ENGINEER MUST HAVE SIGNATURE NOTARIZED)
APPROVED AS TO OWNERSIIIP &
LEGAL DESCRIPT`ICN
Sy: 6&vv1Q a o
(NOTARY STATEMENTS ON FOLLOWING PAGE)
1999-480596
IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII 11/82/49of 9`00R 4
For Use By ox n (1 _
DflG(ara
STATE OF CALIFORNIA)
SS.
COUNTY OF RIVERSIDE)
On R 12P1, iS1, )QS� before me, Jc�alr�n IV eho �s O�Rr / IL�VJ1yC
date I
personally appeared E11I�aloe-rlA flp , actyt 14 QnY kr scctprg,
R a proved to me on the basis of
satisfactory evidence to be the persons
whose names ±0'Subs cxihed to the within
instrument and acknowledged to me thatihey
executed the same in 'I'/424F authorized
capacit�r5 and that by7korsignaL-ureson the
JUD17H A. NICHOIS instrument the person-V or the entity upon
Comm,N 1091508 { behalf of which the personracted, executed
NwotAAyPusuc cauFonNu N the instrument.
flIVAl61ie County
j My Comm E�ohe�Mly x1,10�
Witness my hand and official seal .
0
Signature 6f Notary
(SEAL)
For Use By-Derlaxant
Pr-
STATE OF CALIFORNIA)
SS.
COUNTY OF RIVERSIDE)
On /�!"�r ` / G GJ before me, TNd C. /l/epe,�i JO O /I
dKte
personally appeared
personally known to me
sa#! Qf-a4-" to be the person (
whose name (,a4 dare subscribed to the
withinrinstrument and acknowledged to me
�
t 4 ., she/the �y executed the same n
Ei_A. ;:E L.WEbEKINp er/their authorized capacityfi },
COMM.*12069U ; and that b is hex/their signature (Z) on
vOTARYr!SLICCALIFORNIA the instrument the person) , or the
RIVERSIDE COUNTY Q
COMM EXP.rE9.3,2003 1 entity upon behalf of which the person))
acted, executed the instrument .
Wit s my hand and official seal .
Signature of No ary
(SEAL)
II rr II r r I r 1999-466596
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5
EXHIBIT „A"
LEGAL DESCRIPTION OF OWNER/APPLICANT PROPERTY
The west 90 feet of Lots 23 and 24, Block 25 of Map of Palm Springs
as shown in Book 9, Page 432 of Maps recorded in San Diego County
Recorder' s Office, San Diego, California.
"EXHIBIT "A"
TO OUTDOOR DINING ENCROACHMENT AGREEMENT
7
III ��III III IIIII III II I III �� I III 11%2g 6 of 9B 59
38600R
EXHIBIT "B"
DESCRIPTION OF PUBLIC RIGBT-OF-WAY
That portion of Palm Canyon Drive North ded-icated 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
8
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0
EXHIBIT "C" 1 0£ 2
DEPICTION OF CITY PROPERTY AND ENCROACHMENT
INCLUSIVE OF PERMIT CONDITIONS
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To c r PF'L W r
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EXHIBIT "C"
TO OUTDOOR DINING ENCROACHMENT AGREEMENT
9
IIIIIII Hill 11111IIIIII Ill III IIIIIII III IIIII III IIII lal629g of 999 9960a�
EXHIBIT "C" CONTID. 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.
A . 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.
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