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A5205 - AGUA CALIENTE BAND OF CAHUILLA INDIANS ENCROACHMENT LICENSE PLACEMENT OF FIBER OPTIC CONDUIT
DOC # 2008-0639717 12/05/2008 08:00A Fee:NC Page 1 of 12 Recorded in Official Records County of Riverside RECORDING REQUESTED BY. Larry W. Ward Assessor, County Clerk & Recorder CITY OF PALM SPRINGS III �� I IIIIIII III I ` IIIII IIIII I I IIII AND WHEN RECORDED MAIL TO' I CITY OF PALM SPRINGS PO BOX 2743 S R U MPAGE 812E DA MISC LONG RFD COPY PALM SPRINGS, CA 92262 ATTN:OFFICE OF THE CITY M A L 42G PCOR NCOR SNIP CHGfEXAMCLERK T. CTY UNI SPACE ABOVE FOR RECORDER'S USE ONLY T Filing Fee EXEMPT per Government Cade 6103 ENCROACHMENT LICENSE n BETWEEN THE CITY OF PALM SPRINGS AND II�^14 II THE AQUA CALIENTE BAND OF CAHUILLA INDIANS THIS DOCUMENT REPLACES AND SUPERCEDES DOC. NO. 2008-0561651 - Recorded 10/20/2008 Title of Document THIS AREA FOR RECORDER ' S USE ONLY THIS PAGE ADDED TO PROVIDE ADEQUATE SPACE FOR RECORDING INFORMATION ($3.00 Additional Recording Fees Applies) 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 and Public Works and Engineering Filing Fee Exempt Per Government Code 6103 (For Recorders Use Only) ENCROACHMENT LICENSE (ALL PROPERTIES OTHER THAN INDIVIDUAL RESIDENTIAL PROPERTIES) THIS ENCROACHMENT LICENSE (the"License")is entered into this day of 2008, by and between AGUA CALIENTE BAND OF CAHUILLA 'INDIANS, ("Licensee") and the CITY OF PALM SPRINGS, a municipal corporation ("City"), and is a supplement to the license presented to City Council and approved on April 3, 2007 as shown in Doc#2007-0234080 recorded April 6 2007. RECITALS: A. Licensee is Lessee of that certain property located in the City of Palm Springs, County of Riverside, State of California commonly known as 901 E.Tahquitz Canyon Way, Palm Springs, CA 92262 (APN 508-084-008), more particularly described as Parcel B 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 an additional 800 lineal feet of 4-inch Fiber Optic Conduit which will encroach on the City property in the location depicted on Exhibit "C" attached hereto and incorporated herein by reference (the "Supplemental Encroachment Area"). D. City previously granted to Licensee an encroachment permit for a fiber optic conduit within Tahquitz Canyon Way. Said encroachment was presented to City Council and approved on April 3,2007, as shown in Doc#2007-0234080, recorded April 6,2007, Riverside County Recorder. City grants to Licensee an encroachment permit (°Permit") for the new Encroachment within Tahquitz Canyon Way in accordance with Chapter 14.16 of the City of Palm Springs Municipal Code on the condition that Licensee executes this License. 1 I IIIIII IIIIIII III/IIIIII III IIIIII IIIIII III IIIII III IIII 12 a502 0f G8 GOA 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. 2.1 Completion of Construction. Licensee shall complete construction of the Encroachment no later than two (2)years from the date approved by the City's approving body. The Licensee shall notify the City upon completion of the Encroachment construction. 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. 4.0 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. 4A Construction within Encroachment Area Licensee shall be required to maintain membership with United Service Alert of Southern California (Dig Alert)for the entire term of this Encroachment License, or until the Encroachment is removed, whichever occurs first. Licensee shall be required, pursuant to this provision of the License granted by City, to monitor notifications from USA/Dig Alert(1-800-227-2600)of excavations or other work within the Encroachment Area by public agencies or private parties that may directly affect Licensee's Encroachment. It shall be the Licensee's sole responsibility to adequately mark, identify, and locate its Encroachment within the Encroachment Area for any and all public agencies or private parties who have duly notified USA/Dig Alert of excavations or other work 2 ���� IIIIIII���III III I I I II 1111111111111111111111 we008 aof 12 aeR 3 0£ 8 within the Encroachment Area. Failure of Licensee to timely and/or correctly mark, identify, and locate its Encroachment within the Encroachment Area shall be the responsibility of the Licensee. Licensee shall indemnify, hold harmless, and release City from all damages of any kind, due to damages incurred to its Encroachment within the Encroachment Area, including complete loss of the use and/or value of the Encroachment due to excavations or other work within the Encroachment Area by public agencies, including the City, or private parties who have duly notified USA/Dig Alert of their intention to excavate or perform other work within the Encroachment Area. Licensee acknowledges that this provision of the License granted by City releases City of any financial or other obligations to maintain the Encroachment within the Encroachment Area, and that Licensee shall be solely responsible for ensuring that its Encroachment is adequately protected for the entire term of this Encroachment License. 5.0 Installation 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, 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. 6.0 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 there from; (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 3 (IIIII IIIIIII III I III IIIII IIIII II ��I III(III '2?�A4 62�69A officers, agents or employees in such action or proceeding, including, but not limited to, legal costs and attorneys fees. 7.0 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 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. 8.0 Insurance 8.1 Insurance Requirement. City agrees to waive Licensee's requirement to provide City with liability insurance, as further indicated herein, unless at the sole decision of City, City determines that liability insurance is a necessary element of this Encroachment License. If at any time City determines that liability insurance shall be furnished by the Licensee as indicated herein, the City shall provide Licensee with thirty (30) days written notice to provide City with the required liability insurance. Failure to provide City with required liability insurance, as may be required by City at any time, shall render the Encroachment License void, and the Encroachment License shall be terminated in accordance with Section 9.0 of this Encroachment License. If required, 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 8 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 Bests Insurance Reports no longer be available. 4 IIIii IIII 1 I IIII�II II�III 1 IIIIII II II II IIII III iz e008 ees30 leeR 5 o£ 8 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. 9A 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, 10.0 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: Public Works and Engineering Department With Copy to: City Attorney, City of Palm Springs PO Box 2743 Palm Springs, CA 92263-2743 Attn: Douglas Holland Licensee: Agua Caliente Band of Cahuilla Indians 707 E. Tahquitz Canyon Way, Ste. 18 Palm Springs, CA 92262 Attn: Thomas J. Davis 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 seventy-two (72) hours from the time of mailing if mailed pursuant to this Section 10. 5 IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII ORIIII111112/a0s 19868o1 ,GGA 11.0 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. 12.0 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. 13.0 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. 14.0 Governing Law. This License shall be governed by and construed in accordance with the laws of the State of California. 15.0 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. 16.0 Recordation. This License shall he 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. 17.0 Counterparts. This License may be executed in any number of counter parts, each of which shall constitute an original. IN WITNESS WHEREOF,the parties have executed this Agreement as of the date first set forth above. 6 IIAIIII�IIAIIIIIIIIIIIII III�IIIIIIIIAIIIIIIIIIIhlll�ll sere biz ef�e21eer� "LICENSEE." A A CALI NTE BAND OF CAHUILLA DIA c , Thomas J. Davis Its: Chief Planning and Development Officer (Licensee shall have signature notarized) ATTEST: CITY OF PALM SPRINGS, a municipal corporation By. � ames Thompson,'City Clerk David H. Reacty�,-(3*y Manager q APPROVED By CITY COUNCIL AP AS TO FORM: D�J , tZ .7 05 1�5aO5 Dougl s Holland, City Attorney APPR ED BY CITY C NCIL: By: Its: Resolut' No.: 7 I I�IIII�IIIIII III�IIIIII All 111111 l�hll111111111111 hll 12/eS/2008 OB2leOR STATE OF CALIFORNIA } } SS COUNTY OF RIVERSIDE} _' ' I 1 - On N VY L - before me, J u pf e`�1�CL)l� l I YlA Notary Public, DATE personally appeared- Tbumas J • ayi who proved to me on the basis of satisfactory evidence to be the person(A whose name(s) is/ase subscribed to the within instrument and acknowledged to me that helshefthay executed the same in his/horCtheir authorized capacity(iea), and that by his/herltgeir signatures(s}on the instrument the person(s), or the entity upon behalf of which the person(M acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. (Notary Seal) WITNESS my hand and official seal. Jul1F ERMICMIM Commi km# 1e46254 10 rlvlay PaeNc-Canaria RlvenKle Counry - IL my Comm.Ev koz Feb 14,2oi Signature of Notary STATE OF CALIFORNIA } } SS COUNTY OF RIVERSIDE) On before me, Notary Public, DATE personally appeared 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(ies), 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 State of California that the foregoing paragraph is true and correct. (Notary Seal) WITNESS my hand and official seal. Signature of Notary 8 IIIIIIIIII I II IIII�II111 I IIIIII II IIIIIIIII ra e00�e£3oaa�00A EXHIBIT "A" DESCRIPTION OF LICENSEE PROPERTY A PORTION OF BLOCK 117, IN THE CITY OF PALM SPRINGS, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, AS SHOWN ON MAP FOR AGUA CALIENTE RESERVATION MAP, NOVEMBER, 1948. 9 1111111 II IN 1� 16 of 12 OOA or iz EXHIBIT "B" DESCRIPTION OF CITY PROPERTY TAHQUITZ CANYON WAY, SHOWN AS TAHQUITZ DRIVE, ON AGUA CALIENTE RESERVATION MAP, NOVEMBER 1948, WITHIN A PORTION OF THE NE ONE- QUARTER, SECTION 14, TOWNSHIP 4 SOUTH, RANGE 4 EAST. 10 2008-0639717 I IIIIII IIIIIII III IIIIIII III IIIIII IIIIII III IIIIII III IIII 12/0518B60F S 2 BR I EXHIBIT "C" EXISTING 4" FIBER OPTIC PER CALLS EL SEGUNDO ENCROACHMENT LICENSE BY DOC # 2007-0234080, - - REC. 04/06/07 1 0' Rgm- NORTH 600 IAPN 50L- 55-003 APN 508-570-009 1 r EXISTING F.O. PULL BOX I - 707 I EXISTING 4" FIBER OPTIC PER ENCROACHMENT LICENSE BY m DOC # 2005-1079229, REC. 12/30/05 J`- CALLE -I ALVAF2AD0 Y �801 I pI 60" N R.O.W. 0 888 NEW 4" FIBER OPTIC Z 0 APN 508-840-008 I Z DEPICTION OF CITY PROPERTY 901 n I AND SUPPLEMENTAL ENCROACHMENT INCLUSIVE OF � J PERMIT CONDITIONS 999 1 l Q W NO'L 980 �4 RSV 6 9 AVENIDA CABALLEROS DESIGN gtt SCALE APN NO- RIGHT-OF-WAY ENCROACHMENT EXHIBIT FUP NTS 508-084-008 901 E. TAHQUITZ CANYON WAY CHECKED BY: DATE SHEET NO.: PORTIONS OF S1/2. NW1/4 do N1/2, SW1/4, Section 14, T4S. R4E 11/06/08 1 OF 1 ROC # 2008-0561651 10/20/2008 08200A Fee:NC . l page 1 of 11 Recorded in official Records County of Riverside Larry W. Ward FREE RECORDING REQUESTED BY Rssessor, County clerk & Recorder AND WHEN RECORDED MAIL TO: I11EI 111111111111111111111111111111111111111111111 CITY OF PALM SPRINGS P.O. Box 2743 5 R U PAGE SIZE DA MISC LONG RFD COPY Palm Springs, California 92263-2743 Attn: City Clerk and Public Works and Engineering EXAM M A L a65 426 PCGR NCOR SMF NCH ��JJ 7: CTY 11Nl Ula Filing Fee Exempt Per Government Code 6103 (For Recorder's Use Only) ENCROACHMENT LICENSE k1 (ALL PROPERTIES OTHER THAN INDIVIDUAL RESIDENTIAL PROPERTIES) 812 THIS ENCROACHMENT LICENSE (the "License") is entered into this 161h day of September, 2008, by and between AGUA CALIENTE BAND OF CAHUILLA INDIANS, ("Licensee") and the CITY OF PALM SPRINGS, a municipal corporation ("City"), and is a supplement to the license presented to City Council and approved on April 3, 2007, as shown in Doc#2007-0234080, recorded April 6, 2007. RECITALS: A. Licensee is Lessee of that certain property located in the City of Palm Springs, County of Riverside, State of California commonly known as 901 E. Tahquitz Canyon Way, Palm Springs, CA 92262 (APN 508-084-008), more particularly described as Parcel B 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 an additional 1000 lineal feet of 4-inch Fiber Optic Conduit which will encroach on the City property in the location depicted on Exhibit "C"attached hereto and incorporated herein by reference(the"Supplemental Encroachment Area"). D, City previously granted to Licensee an encroachment permit for a fiber optic conduit within Tahquitz Canyon Way. Said encroachment was presented to City Council and approved on April 3, 2007, as shown in Doc #2007-0234080, recorded April 6, 2007, Riverside County Recorder. City grants to Licensee an encroachment permit('Permit")forthe new Encroachment within Tahquitz Canyon Way in accordance with Chapter 14.16 of the City of Palm Springs Municipal Code on the condition that Licensee executes this License. 1 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. 2.1 Completion of Construction. Licensee shall complete construction of the Encroachment no laterthan two (2)years from the date approved by the City's approving body. The Licensee shall notify the City upon completion of the Encroachment construction. 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. 4.0 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. 4.1 Construction within Encroachment Area Licensee shall be required to maintain membership with United Service Alert of Southern California(Dig Alert)forthe entire term of this Encroachment License, or until the Encroachment is removed, whichever occurs first. Licensee shall be required, pursuant to this provision of the License granted by City, to monitor notifications from USA/Dig Alert(1-800-227-2600)of excavations or other work within the Encroachment Area by public agencies or private parties that may directly affect Licensee's Encroachment. It shall be the Licensee's sole responsibility to adequately mark, identify, and locate its Encroachment within the Encroachment Area for any and all public agencies or private parties who have duly notified USA/Dig Alert of excavations or other work 2 IIIIIIIIIIIIIIIIIIIIIIIIII�IIIIIIIII�IIIIIIIII11111111 1e,... 81�5eeA within the Encroachment Area. Failure of Licensee to timely and/or correctly mark, identify, and locate its Encroachment within the Encroachment Area shall be the responsibility of the Licensee. Licensee shall indemnify, hold harmless, and release City from all damages of any kind, due to damages incurred to its Encroachment within the Encroachment Area, including complete loss of the use and/or value of the Encroachment due to excavations or other work within the Encroachment Area by public agencies, including the City, or private parties who have duly notified USA/Dig Alert of their intention to excavate or perform other work within the Encroachment Area. Licensee acknowledges that this provision of the License granted by City releases City of any financial or other obligations to maintain the Encroachment within the Encroachment Area, and that Licensee shall be solely responsible for ensuring that its Encroachment is adequately protected for the entire term of this Encroachment License. 5.0 Installation 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, 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. 6.0 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 there from; (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 3 4411411111111111111111111111illllllllllllllllllllllllll ie z0°3 of}i officers, agents or employees in such action or proceeding, including, but not limited to, legal costs and attorneys fees. 7.0 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 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. 8.0 Insurance 8.1 Insurance Requirement. City agrees to waive Licensee's requirement to provide City with liability insurance, as further indicated herein, unless at the sole decision of City, City determines that liability insurance is a necessary element of this Encroachment License. If at any time City determines that liability insurance shall be furnished by the Licensee as indicated herein, the City shall provide Licensee with thirty (30) days written notice to provide City with the required liability insurance. Failure to provide City with required liability insurance, as may be required by City at any time, shall render the Encroachment License void, and the Encroachment License shall be terminated in accordance with Section 9.0 of this Encroachment License. If required, 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 8 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. 4 IIIIIII IIIIIAIIIIIIIIIIIAIIIIIIIII�IIIIIIIIIIII1IIIlAII iOISO/ e£6 8SeeR 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. 9.0 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. 10.0 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: Public Works and Engineering Department With Copy to: City Attorney, City of Palm Springs PO Box 2743 Palm Springs, CA 92263-2743 Attn: Douglas Holland Licensee: Agua Caliente Band of Cahuilla Indians 707 E. Tahquitz Canyon Way, Ste. 18 Palm Springs, CA 92262 Attn: Thomas J. Davis 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 seventy-two (72) hours from the time of mailing if mailed pursuant to this Section 10. 5 III I IIII I II I I IIII II I I I III I 111111111IIII zo/2©0 a 06e laSeeR 11.0 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. 12.0 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. 15.0 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. 14.0 Governing Law. This License shall be governed by and construed in accordance with the laws of the State of California. 15.0 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 orthe same provision when applied to another party or to a different set of circumstances. 16.0 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. 17.0 Counterparts. This License may be executed in any number of counter parts, each of which shall constitute an original, IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first set forth above. 6 IAlll IIII II IIA IIII IIIIIIII IIA J IIIII III I1III IIII II ie zaA z of ieSeeR - - _ "LICENSEE" A K-CA II±NTE BAND OF CAHUILLA 16D ANS Thomas J. Davis Its: Chief Planning and Development Officer (Licensee shall have signature notarized) ATTEST: CITY OF PALM SPRINGS, a municipal corporation By: gy��� ames Thompson, City Cler David H. R d i anager APPROVED BY CITY COUNCIL APPRO S TO FO �� ��g� ? .p P APPROVED BY CITY MANAGER Dougl Hol and, City Attorney APPRO D BY CITY COON . By: Its: Resol on No.: 7 IIIIII IIIIIII III IIII IIIIIIII III IIIIIII III IIIII IIII IIII 10 29A2 0 of 11 H�00R { STATE OF CALIFORNIA } } SS COUNTY OF RIVERSIDE} Y OrkS 7Ok..Mi_]Kr f(v, 2 before me, 11( I I-t' �� ���11 Ci��l i Yl r Notary Public, DATE personally appeared rl hama AV15 who proved to me on the basis of satisfactory evidence to be the persor)4}whose rname(s4 is/are-subscribed to the within instrument and acknowledged to me that he/sheAkoy executed the same in his1l eir- authorized capacity(iesj;and that by his/heWOiek slgnatures(s}on the instrument the person(s},.or the entity upon behalf of which the person(e)-acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. (Notary Seal) WITNESS my hand and official seal. JULIE 9RANCNMI commmlon r laazw NOR"PuW-cgmofflia _ RWWWD curly MyCdllrrr.Fs{pY�i Fob 14,407 Signature of Notary i STATE OF CALIFORNIA } } SS COUNTY OF RIVERSIDE} On, before me, Notary Public, DATE personally appeared 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(ies), 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 State of California that the foregoing paragraph is true and correct. (Notary Seal). WITNESS my hand and official seal. Signature of Notary 8 �008 0561651 EXHIBIT "A" DESCRIPTION OF LICENSEE PROPERTY A PORTION OF BLOCK 117, IN THE CITY OF PALM SPRINGS, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, AS SHOWN ON MAP FOR AGUA CALIENTE RESERVATION MAP, NOVEMBER, 1948. 9 I IIIIII IIIIIII III Iill IIIIIIII III IIIIIII III INIII IIII IIII xe?ze ge£e�aSmeA EXHIBIT "B" DESCRIPTION OF CITY PROPERTY TAHQUITZ CANYON WAY, SHOWN AS TAHQUITZ DRIVE, ON AGUA CALIENTE RESERVATION MAP, NOVEMBER 1948, WITHIN A PORTION OF THE NE ONE- QUARTER, SECTION 14, TOWNSHIP 4 SOUTH, RANGE 4 EAST. 10 IIIIIIII�IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIAII io 10 eo6ea5e0R EXHIBIT "G" EXISTING 4" FIBER OPTIC PER CALLE EL SEGUNDO ENCROACHMENT LICENSE BY DOC # 2007-0234080, REC. 04/06/07 flIAPPIN-4 Fn r I �j NORTH o 5'OEL5-003 APN 508-570-009 1 —EXISTING F.O. PULL BOX 707 I EXISTING 4" FIBER OPTIC PER - i ENCROACHMENT LICENSE BY DOC # 2005-1079229, I REC. 12/30/05 CALLE ALVARADO NEW 4" FIBER OPTIC 801 c f - 60' N , R.O.W. 888 I < 0 APN 508-840-008 I Z _ DEPICTION OF CITY PROPERTY L -' > I AND SUPPLEMENTAL �� ENCROACHMENT INCLUSIVE OF PERMIT CONDITIONS 71999 1 s J �8� l N 0 L� O W[ll AVENIDA CABALLEROS 9 DESIGN BY: SCALE APN NO.: RIGHT-OF- WAY ENCROACHMENT EXHIBIT FUP NTS 508-084-008 901 E. TAHQUITZ CANYON WAY CHECKED BY: DATE SHEET NO.: PORTIONS OF S1/2, NW1/4 & N1/2. SW1/4, Section 14. T45, R4E 05/15/08 1 OF 1 DOG # 2007-0234080 04/06/2007 08:00A Fee:NC page 1 of 11 Recorded in official Records County of Riverside LC W. rd FREE RECORDING REQUESTED BY I County Clerk & Recorder I AND WHEN RECORDED MAIL TO: CITY OF PALM SPRINGS I IIIIII IIIIIII111111111 IIIIII IIIII IIIIIIIIIIII It P.O. BOX 2743 S R U PAGE SIZE DA I MISC I LONG RFD COPY Palm Springs, California 92263-2743 `1 f Attn: City Clerk and Public Works and Engin M A L 465 426 1 PCOR NCOR SMF NCHG "A" i (ftC Filing Fee Exempt Per Government Code 61 Ur-- n r or ecdrder'�7se Only) ENCROACHMENT LICENSE ►V�Q� 029 (ALL PROPERTIES OTHER THAN INDIVIDUAL RESIDENTIAL PROPERT``I7S) THIS ENCROACHMENT LICENSE (the "License") is entered into this J -day of 2007, by and between AGUA CALIENTE BAND OF CAHUILLA INDIANS, ("Licensee") and the CITY OF PALM SPRINGS, a municipal corporation ("City"), and is a supplement to the license presented to City Council and,approved on December 7, 2005, as shown in Doc #2005-1079229 recorded 12/30/2005. RECITALS: 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 600 E. Tahquitz Canyon Way, Palm Springs, CA 92262 (APN 508-055-003), more particularly described as Parcel A on Exhibit "A" attached hereto and incorporated herein by reference ("Licensee Property"). Licensee is Lessee of that certain property located in the City of Palm Springs, County of Riverside, State of California commonly known as 707 E. Tahquitz Canyon Way, Palm Springs, CA 92262 (APN 508-570-009), more particularly described as Parcel B 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 an additional 480 lineal feet of 4-inch Fiber Optic Conduit which will encroach on the City property in the location depicted on Exhibit "C"attached hereto and incorporated herein by reference(the "Supplemental Encroachment Area"). D. City previously granted to Licensee an encroachment permit for a fiber optic conduit within Tahquitz Canyon Way. Said encroachment was presented to City Council and 1 approved on December 7, 2005, as shown in Doc #2005-1079229, recorded 12130/2005, Riverside County Recorder. City grants to Licensee an encroachment permit("Permit")forthe new Encroachment within Tahquitz Canyon Way and Calle El Segundo in accordance with Chapter 14.16 of the City of Palm Springs Municipal Code on the condition that Licensee executes this License. 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_ 2.1 Completion of Construction. Licensee shall complete construction of the Encroachment no later than two (2)years from the date approved by the City's approving body. The Licensee shall notify the City upon completion of the Encroachment construction. 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. 4.0 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. 2 i 8A6£308�09a,9 2 aA111111111111111111111111111 4.1 Construction within Encroachment Area Licensee shall be required to maintain membership with United Service Alert of Southern California (Dig Alert) for the entire term of this Encroachment License, or until the Encroachment is removed, whichever occurs first_ Licensee shall be required, pursuant to this provision of the License granted by City, to monitor notifications from USA/Dig Alert (1-800-227-2600) of excavations or other work within the Encroachment Area by public agencies or private parties that may directly affect Licensee's Encroachment. It shall be the Licensee's sole responsibility to adequately mark, identify, and locate its Encroachment within the Encroachment Area for any and all public agencies or private parties who have duly notified USA/Dig Alert of excavations or other work within the Encroachment Area. Failure of Licensee to timely and/or correctly mark, identify, and locate its Encroachment within the Encroachment Area shall be the responsibility of the Licensee. Licensee shall indemnify, hold harmless, and release City from all damages of any kind, due to damages incurred to its Encroachment within the Encroachment Area, including complete loss of the use and/or value of the Encroachment due to excavations or other work within the Encroachment Area by public agencies, including the City, or private parties who have duly notified USA/Dig Alert of their intention to excavate or perform other work within the Encroachment Area. Licensee acknowledges that this provision of the License granted by City releases City of any financial or other obligations to maintain the Encroachment within the Encroachment Area, and that Licensee shall be solely responsible for ensuring that its Encroachment is adequately protected for the entire term of this Encroachment License. 5.0 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, 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. 6.0 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; 3 II�IIIIIIIIIIII�IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII 94,16812002 3 11 eege�a i (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 there from; (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. 7.0 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 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. 8.0 Insurance 8.1 Insurance Requirement. City agrees to waive Licensee's requirement to provide City with liability insurance, as further indicated herein, unless at the sole decision of City, City determines that liability insurance is a necessary element of this Encroachment License. If at any time City determines that liability insurance shall be furnished by the Licensee as indicated herein, the City shall provide Licensee with thirty (30) days written notice to provide City with the required liability insurance. Failure to provide City with required liability insurance, as may be required by City at any time, shall render the Encroachment License void, and the Encroachment License shall be terminated in accordance with Section 9.0 of this Encroachment License. If required, 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 8 shall be primary insurance and shall name the City as additional insured. 4 IIIII IIIA�II II I IIII IIII(IIIII IIIII III IIIII IIII IIII 0 4eO 3 11 eege as es ee 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. 9.0 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. 10.0 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: Public Works and Engineering Department With Copy to: City Attorney, City of Palm Springs PO Box 2743 Palm Springs, CA 92263-2743 Attn: Douglas Holland 5 1111111111111111111111111 IIIIII 64�6as0 r 11 08$00P Licensee: Aqua Caliente Band of Cahuilla Indians 707 E. Tahquitz Canyon Way, Ste. 18 Palm Springs, CA 92262 Attn: Thomas J. Davis 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 seventy-two (72) hours from the time of mailing if mailed pursuant to this Section 10. 11.0 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. 12.0 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. 13.0 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. 14.0 Governing Law. This License shall be governed by and construed in accordance with the laws of the State of California. 15.0 Severability. The invalidity or unenforceability of any provision of this License with respect to a particular party or set of circumstances shall not in anyway affect the validity and enforceability of any other provision hereof orthe same provision when applied to another party or to a different set of circumstances. 16.0 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. 17.0 Counterparts. This License may be executed in any number of counter parts, each of which shall constitute an original. 6 2007 8234080 I IIIIII IIIIIII IIIII1E III,111111III111111111 ea,ss,$ 'o 0a 0aR IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first set forth above. "LICENSEE" AG LIENTE BAND OF CAHUILLA I IA By: J Thomas J. Davis Its: Chief Planning and Development Officer (Licensee shall have signature notarized) ATTEST: CITY OF PALM SPRINGS, a municipal corporation City Clerk City Manager �AMPROVED BY CITY COUNCIL r� AP4Attrney- S TO FORM 0 1I ,b A ap% pp ��`APPROVEO BY CITY MANGER City •Q � APPROVED BY CITY COUNCIL: By: Its: Resolution No.- II II 7I IAlllIIIIIIIIIII AAIIIII III IIA II IIIII IIII II oa vsA7 of 1esae� n or 8 STATE OF CALIFORNIA) Ss. COUNTY OF RIVERSIDE) On t 7, ?QCf—j before me, JQJd t. DATE J personally appeared hG171C(.S ,J �rlb l_5 personally known to me OR '! proved to me on the basis of satisfactory evidence to be the person( {) whose name( [aV subscribed to the within instrument and acknowledged to me that �e/shefth,qy executed the same inihis[bW1h@4rauthorized capacity(j'bq), and that b hisXPgr/th9 r signature(sa on the &MCHM"M instrument the person(Kacted, executed the instrument. COMhOw• I6"254 notary P%tft-CQ1k rio aw«jde county Witness my hand and official seal_ MYcunRt hb 19,2Ql � , Signature of Notary STATE OF CALIFORNIA) SS. COUNTY OF RIVERSIDE) On before me, GATE 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) acted, executed the instrument- Witness my hand and official seal. Signature of Notary a II III I 11I1I I 2007-02340$0 l llllll lllllll llll�11E 1111111111111111111llll earesrsao£es aefl EXHIBIT "A" DESCRIPTION OF LICENSEE PROPERTY PARCEL A: BLOCK 10 IN THE SOUTH HALF OF THE NORTHWEST QUARTER OF SECTION 14, TOWNSHIP 4 SOUTH, RANGE 4 EAST, SAN BERNARDINO BASE AND MERIDIAN, ACCORDING TO THE OFFICIAL PLAT OF SAID LAND FILED IN THE DISTRICT LAND OFFICE ON JUNE 11, 1927 AS SUPPLEMENTED ON MAY 12, 1960, PARCEL B: CONDIMINIUM UNITS 17-19, INCLUSIVE, WITHIN A PORTION OF LOT 2 OF TRACT NO. 16043, IN THE CITY OF PALM SPRINGS, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, AS SHOWN BY MAP ON FILE IN BOOK 116, PAGES, 88 AND 89, RECORDS OF SAID COUNTY. 9 III I IIIIIII IIIII IIII IIII IIIIII 11111111 IIII 1111 IIII 04? 5 of 11 eoa EXHIBIT "B" DESCRIPTION OF CITY PROPERTY TAHQUITZ DRIVE OVER PORTIONS OF LOTS 9, 10, 17, & 18 INCLUSIVE AS SHOWN ON STREET RIGHT-OF-WAY PLAN FOR CITY OF PALM SPRINGS, DEED 217, BOOK 2484, PAGE 126, RECORDED JUNE 2, 1959, OFFICIAL RECORDS OF RIVERSIDE COUNTY, CALIFORNIA. CALLE EL SEGUNDO OVER A PORTION DEDICATED TO THE CITY OF PALM SPRINGS PER INSTRUMENT NO. 67034, RECORDED JUNE 8, 1974, OFFICAL RECORDS OF RIVERSIDE COUNTY, CALIFORNIA. 10 IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII Ba 66,1 0?08 0@a EXHIBIT IICII NEW 4" FIBER OPTIC LINE AND SUPPLEMENTAL ENCROACHMENT DEPICTION OF CITY PROPERTY AND AREA WITHIN ROAD RIGHT-OF-WAY SUPPLEMENTAL ENCROACHMENT INCLUSIVE OF PERMIT CONDITIONS EXISTING 4" OPTIC FIBER LINE --------------- CALLS EL .SEGUNDO ' rrr - -_----- i r I = --40 i 33.45 k 66.55' R.O.W11 l�,N R.0_W. R.O.W. I m , li III III I I IIDi 0 I I T i i 11 li AP 508-055-00 1 1 1 I I PARCE A I 1 I I i IIa I IN I D I ! mm I 1 7- 4' I 1J Lam.. ' ' O IIzi111 II tim APN 508-570-009 PARCEL B 707 I 1 I i ' XISTING 4" FIBER OPTIC PER i1 � i I ENCROACHMENT LICENSE BY DOC # 2005-1079229, 1 i 1 I REG. 12/30/05 EXISTING 4" OPTIC FIBER LINE I I .110 1 'O.W. 1 ' NORTH 32.67' ; I 1 ' 67.33' C R.O.W 1 I Ii 1 R.O.W. 50' ------------------ 1 R.O.W. CALLE ALVARADO DESIGN BY: SCALE: APN NO.: RIGHT-OF-WAY ENCROACHMENT FUP NTS 505-055-003 EXHIBIT CHECKED BY. DATE SHEET NO.: PORTIONS OF S1/2, NW1/4 do N1/2, SW1/4, Section 14, T4S, R4L 3/12/07 1 OF 1 " y Doc #k 2005--1 0 7 9229 12/30/2005 08;00R Fee:NC " page 1 of 12 Roeorded in Offi.Aa7 Records County of Riverside Larry FREE RECORDING REQUESTED BY pssesser, County Clerk & Recorder AND WHEN RECORDED MAIL_TO: I Illl I IIIIIII III II I IIIII III I IIIII ll IIIII IIII III CITY OF PALM SPRINGS --- P:O. Box 2743 M 5 U rxce size I on F R Noccp soF- oc Palm Springs, California 92263-2743 Attn: City Clerk and Public Works and Engineering A R tort ufNc k[f urvo rvcxc fknrq Filing Fee Exempt Per Government Code 6103 (For Recorder's Use Only) r ENCROACHMENT LICENSE - Wt7C� (ALL PROPERTIES OTHER THAN INDIVIDUAL. RESIDENTIAL PROPERTIES) THIS ENCROACHMENT LICENSE (the "License") is entered into this day of 2005, by and between AQUA CALIE'NTE BAND OF CAHUIL. INDIANS, " icensee"') and the CITY OF PALM SPRINGS, a municipal corporation ("City"). RECITALS: 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 600 E. Tahquitz Canyon Way, Palm Springs, CA 92262(APN 508-055-003), more particularly described as Parcel A on Exhibit "A" attached hereto and incorporated herein by reference ("Licensee Property"). Licensee is Lessee of that certain property located in the City of Palm Springs, County of Riverside, State of California commonly known as 707 E, Tahquitz Canyon Way, Palm Springs, CA 92262 (APN 508-570-009), more particularly described as Parcel B on Exhibit"A"' attached hereto and incorporated herein by reference ("Licensee Property")_ I3_ 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''!. G. Licensee desires to construct approximately 250 lineal feet of 4-inch Fiber Optic Conduit which will encroach on the City property in the location depicted on Exhibit "C" 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 OC�!L,thti sL FiD 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. 7.1 Completion of Construction. Licensee shall complete construction of the Encroachment no later than two (2)years from the date approved by the City's approving body. The Licensee shall notify the City upon completion of the Encroachment construction. 3.0 Construction of Encroachment, Any structure placed pursuantto 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. 4.0 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, 4.1 Construction within Encroachment Area Licensee shall be required to join and maintain membership with United Service Alert of Southern California (Dig Alert) for the entire term of this Encroachment License, or until the Encroachment is removed, whichever occurs first. Licensee shall be required, pursuant to this provision of the License granted by City, to monitor notifications from USA/Dig Alert (1-800-227-2600) of excavations or other work within the Encroachment Area by public agencies or private parties that may directly affect Licensee's Encroachment. It shall be the Licensee's sole responsibility to adequately mark, identify, and locate its Encroachment within the Encroachment Area for any and all public agencies or private parties who have duly notified USA/Dig Alert of excavations or other work within the Encroachment Area, Failure 2 SlD 1111111111111111111111111111111111111111111111111�2a92ofi9E2@Riul� i of Licensee to timely and/or correctly mark, identify, and locate its Encroachment within the Encroachment Area shall be the responsibility of the Licensee. Licensee shall indemnify, hold harmless, and release City from all damages of any kind, due to damages incurred to its Encroachment within the Encroachment Area, including complete loss of the use and/or value of the Encroachment due to excavations or other work within the Encroachment Area by public agencies, including the City, or private parties who have duly notified USA/big Alert of their intention to excavate or perform other work within the Encroachment Area. Licensee acknowledges that this provision of the License granted by City releases City of any financial or other obligations to maintain the Encroachment within the Encroachment Area, and that Licensee shall be solely responsible far ensuring that its Encroachment is adequately protected for the entire term of this Encroachment License. 5.0 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, 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. 6.0 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 there from; (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 forsuch 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, 3 ► l���Ifl Illl�lf���I f�l��II�II Illl�u�l�l I��IIII�Ill III 12 2 0, s Q 2 b®fl ,�Iid�, JV�'�'.�eij ��Y 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- 7.0 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 interest in any portion of the Licensee Property at any time orfrom time to time;and (d)will inure to the benefit of the City and every person having anyfee, leasehold or other interest in the City Property at anytime or from time to time. 8.0 Insurance. SA Insurance Requirement. City agrees to waive Licensee's requirementto provide City with liability insurance, as further indicated herein, unless at the sole decision of City, City determines that liability insurance is a necessary element of this Encroachment License. If at any time City determines that liability insurance shall be fumished by the Licensee as indicated herein, the City shall provide Licensee with thirty (30) days written notice to provide City with the required liability insurance. Failure to provide City with required liability insurance, as may be required by City at any time, shall render the Encroachment License void, and the Encroachment License shall be terminated in accordance with Section 9.0 of this Encroachment License. if required, 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- 9.2 Primary Policy;Additional Insured. All such insurance as required by this Section 8 shall be primary insurance and shall name the City as addifipnal 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 atthattime is not adequate,the City Manager may require modifications to this coverage. 8.4 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. 4 ` I ` I II II II `IIIIIII III 1 A AI I��I 11 I I II 111 I II{II 12y96/2 C05 E3/ 4of12 0 FR -;,I49 riI -�{ai6i-I-i1fi�F"'• 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, togetherwith 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. 9.0 Termination. The License is terminable with orwithoutcause bythe 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 flails to remove the encroachment and restore- the City Property within said time period,the City shall have the rightto 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_ 10.0 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: Public Works and Engineering Department With Copy to: City Attorney, City of Palm Springs PO Box 2743 Palm Springs, CA 92263-2743 Attn: Douglas Holland Licensee: Acua Callente Band of Cahuilla Indians 707 E, Tahquitz Canyon Way, Ste. 18 Palm Springs, CA 92262 Attm Thomas J. Davis 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 seventy-two (72) hours from the time of mailing if mailed pursuant to this Section 10. 5 Il I I I II IIII L��V�:?IF."-�'d_ ii1Vl; ��II �AII�IIIIII��IIIIIAIIIIIIII��II 1�1 AI llll ivse,y Z 12 OOS S@8 O 11 A 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. 12.0 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. 13.0 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. 14,0 Governing Law. This License shall be governed by and construed in accordance with the laws of the State of California. 15.0 Severability. The invalidity or unenforceability of any provision of this License with respect to a particular party or set of circumstances shall not in anyway affect the validity and enforceabiiity of any other provision hereof crthe same provision when applied to another party or to a different set of circumstances. 16.0 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 andfor restricted in the manner herein described. 17.0 Courite:parts. This License may be executed is�any numbers`counterparts, each of which shall constitute an original- 6 ������IIIIIIIIIIi��II�II 111III1111111111111IN xQa �6 of 12!oe� IN WITNESS WHEREOF,the parties have executed this Agreement as of the date first set forth above. "LICENSEE" AGU CALI NTE BAND OF CAHUILLA IND NS By 5 homas J. Davis Its: Chief Planning and Development Officer (Licensee shall have signature notarized) G' A'fTFST� CITY OF PALM SPRINGS, a municipal corporation Y City Clerk City Manager APPRM SYMY COUNCIL APPROVED, TO FORM: L aa 12-122 &14,— City Att rne�r AP RME ID BY CITY UNCIL: �Y• Its: Resol ion No.: 7 IAllll��II�II IIII IIIII IIIII III�I��I�II Ill IIII IIII IIII 1e0a5 sere 229ea STATE OF CALIFORNIA) SS. COUNTY OF RIVERSIDE) On hDL&rijL c_V'I 100 - before me, Vic 2t(A L- hil <pt 1 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 samie in his/herrtheir authorized capacity(ies), and that by his/her/their signature(s)on the tir instrument the person(s) acted, executed the instrument, iu"iAf IA C- IVI_DIN I ho ni�PUFluc783380# G 1YPLJ LjC-CAUn�MIA Witness my hand and official seal. Signature of Notary STATE OF CALIFORNIA) _. SS. COUNTY OF RIVERSIDE) On before me, OATS personally appeared ❑ persenally 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/herttheir signature(s) on the instrument the person(s) acted, executed the instrument- Witness my hand and official seal. Signature of Notary IIIIIIlIIl111 Illllull 1111111111111I terat3 o t or 1 eea o Under the provisions of Government Code 27361.7, 1 certify under the penalty of perjury that the notary seal on the document to which this statement is attached reads as follows; Name of Notary_ Commission #: 333�U`I Place of Execution: I VC CA . Date Commission Expires. 1L FG .�� Date: Signature: 1 IIIIII��il�ll III I�III AIA�I II II IIIII III I I�I IIII iz�e09 007 zsa�aa EXHIBIT "A" DESCRIPTION OF LICENSEE PROPERTY PARCEL A: BLOCK 10 IN THE SOUTH HALF OF THE NORTHWEST QUARTER OF SECTION 14, TOWNSHIP 4 SOUTH, RANGE 4 EAST, SAN BERNARDINO BASE AND MERIDIAN, ACCORDING TO THE OFFICIAL PLAT OF SAID LAND FILED IN THE DISTRICT LAND OFFICE ON JUNE 11, 1927 AS SUPPLEMENTED ON MAY 12, 1960, PARCEL B: CONDIMINIUM UNITS 17-19, INCLUSIVE, WITHIN A PORTION OF LOT 2 OF TRACT NO. 16043, IN' THE CITY OF PALM SPRINGS, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, AS SHOWN BY MAP ON FILE IN BOOK 116, PAGES, 88 AND 89, RECORDS OF SAID COUNTY. 9 111EIINEIII 1111111111111111111111111111111IN y W1600P 0 11 2s" EXHIBIT "B" DESCRIPTION OF CITY PROPERTY TAHQUITZ DRIVE OVER PORTIONS OF LOTS 9, 10, 17, & 1S INCLUSIVE AS SHOWN ON STREET RIGHT-OF-WAY PLAN FOR CITY OF PALM SPRINGS, DEED 217, BOOK 2484, PAGE 126, RECORDED JUNE 2, 1959, OFFICIAL RECORDS OF RIVERSIDE COUNTY, CALIFORNIA. 10 I II I II III III IIII IIIII II II 1�� I��I� I �� 1a�®�rxPes�ea�aea y1 aS 12 EXHIBIT "C" DEPICTION OF CITY PROPERTY AND ENCROACHMENT INCLUSIVE OF PERMIT CONDITIONS _----- I CALLE EL SEGUNDO -- 33.45 - I ,------------- R.O.W.3.45 I I ; 66.55' ---- -- I I I I R.O.W. I II I ' ImiI I � ' I II I 1 �� I II 600 I I A N 508 005- 0 1 p 1 1 I 1 PARC I I L A- I NlI 1 � ; 1 II I 1 1C11 1 I � I 1 ZI1 " I _ I I= I� ;h_ APN 508-570-009 BEGIN 4"' OPTIC PARCELS ' I I li�'I NI ' FIBER LINE �1 707 ' 1 �1 1 �;p I ..ram i j.�•;1 I ; ENCROACHMENT AREA { 1 I + WITHIN ROAD RIGHT--OF-WAYcv - END 4" OPTIC �Jr I . 700 FIBER LINE w� 32.67' -NO R7"H e� R.d.W. i 1 67.333 N" II �} 1 N"ti I , R.O.W. 5071 CALLE ALVARADO 1 DESIGN BY: SCALE: FILE NO.: RIGHT-OF-WAY ENCROACHMENT FUP NTS 508-055-003 EXHIBIT CHECKED pN DATE SHEET NO- PORTIONS OF S 1/2,NW 114&N 112,SW 1/4, Secfion 14,T 4 S,R 4 E MLF 11/03/05 1 OF 1