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c441FOR City Council Staff Report
Date: October 19, 2011 CONSENT CALENDAR
Subject: APPROVAL OF AN ENCROACHMENT LICENSE TO DESERT
HEALTHCARE DISTRICT, FOR PRIVATE UNDERGROUND ELECTRIC
LINES AND FIBER OPTIC COMMUNICATION LINES IN MEL AVENUE
From: David H. Ready, City Manager
Initiated by: Public Works and Engineering Department
SUMMARY
Approval of this item will authorize the issuance of an Encroachment License to Desert
Healthcare District, for operation and maintenance of private underground electric lines
and fiber optic communication lines located in Mel Avenue.
RECOMMENDATION:
1) Approve Agreement No. an Encroachment License between the City of
Palm Springs and Desert Healthcare District, a political subdivision of the state of
California, for operation and maintenance of private underground electric lines
and fiber optic communication lines located in Mel Avenue; and
2) Authorize the City Manager to execute all necessary documents.
STAFF ANALYSIS:
Chapter 14.16 of the Palm Springs Municipal Code requires an encroachment permit to
be issued for any improvements constructed in the public right-of-way. Additionally,
whenever utility facilities or other improvements of a type of use determined by the
Director of Public Works to require additional liability protection for the City, a formal
agreement through an Encroachment License is required.
On June 23, 2010, the Planning Commission approved an amendment to Planned
Development No. 185, Case No. 5.0421, for the construction of a new 291 space
parking lot located on the north side of Mel Avenue. The new parking lot has covered
parking with solar panels located on top of the car ports. This solar photovoltaic system
feeds solar generated electricity to the hospital's SCE meter on the south side of Mel
ITEM NO. 1
City Council Staff Report
October 19 ,2011 - Page 2
Encroachment License with Desert Healthcare District
Avenue. In addition, parking lot security camera and communication lines are fed from
the parking lot to the hospital's security system on the south side of Mel Avenue.
Given the type of private utilities being extended across Mel Avenue, it is necessary for
the Desert Healthcare District to obtain an Encroachment License for the private
electrical and communication lines extending across public right-of-way. The proposed
Encroachment License satisfies that requirement.
Conditions of the Encroachment License require the applicant to join and maintain
membership with Underground Service Alert of Southern California (USA/Dig Alert),
imposing requirements on the applicant to maintain its private utilities, and to identify
and mark its location within the right-of-way when construction or excavation may occur
within the street.
Staff recommends approval of the encroachment license with Desert Healthcare
District.
FISCAL IMPACT:
None.
SUBMITTED:
Prepared by: Recommended by:
9-
Marcus L. Fu ler David J. Barakian
Assistant Director of Public Works Director of Public Works/City Engineer
Approved by:
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Thomas J. Wils Asst. City Manager David H. Ready, anager
Attachments:
1. Encroachment License
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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 Recorder's Use Only)
EL 11-02
PRIVATE UTILITY ENCROACHMENT LICENSE AGREEMENT
IS ENCROACHMENT LICENSE (the "License") is entered into this I day of
2011, by and between Desert Healthcare District, apolitical
subdivision of the state of California ("Licensee"), and the CITY OF PALM SPRINGS, a
California charter city ("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 388 E. Mel Avenue,
Palm Springs, CA 92262 (APN 507-061-024), more particularly described as Parcel A 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 described and shown on Exhibit "B" ("City
Property").
C. Licensee desires to construct and maintain a duct bank containing: ONE f-
inch (I.D.) low voltage conduit, ONE 1-inch (I.D.) power conduit, TWO 4-inch power
conduit, TWO 2-inch (I.D.) Security conduits, ONE 3-inch Fiber Optic conduit, each
conduit being approximately 50 L.F in length, hereinafter referred to as the
"Encroachment",which will encroach on the City property in the location described and shown
on Exhibit "C", attached hereto and incorporated herein by reference (the "Encroachment
Area").
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.
NOW THEREFORE, the parties hereto agree as follows:
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1.0 License. The City hereby grants a License to Licensee to construct the
Encroachment within the Encroachment Area 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 City that construction of Encroachment 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.
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
Public Works and Engineering Department of Building and Safety, before Licensee
commences construction of Encroachment within the Encroachment Area, or commences
construction of any work on Licensee Property.All work must conform to current City of Palm
Springs standard details and as directed by the City Inspector to the satisfaction of the City
Engineer.
4.0 Maintenance by Licensee. 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. As the Encroachment Area consists of public street rights-of-
way, the Licensee shall ensure that any excavations, trenches, and backfill and repaving of
trenches excavated by Licensee for the Encroachment are maintained as required by the City,
in accordance with applicable City standards or as directed by the City Engineer. Licensee
hereby agrees to perform such additional repairs and/or maintenance work in the
Encroachment Area within fifteen (15) days notice from City. 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 shall submit an invoice to Licensee for payment of the repairs and/or
maintenance work performed by City, including administrative fees, and Licensee shall pay
such invoice received within thirty (30) days for such work performed. Failure to pay any
invoice submitted to Licensee by City within thirty (30) days notice from City shall
automatically terminate the License herein granted.
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4.1 Maintaining Electric Service to Pedestrian Crossing. Licensee has
completed installation of a mid-block pedestrian crossing on Mel Avenue as part of its
construction of an employee parking lot. Electrical service to the flashing beacon
assemblies on either side of the mid-block crosswalk is provided by the on-site
electrical system constructed with the employee parking lot. In lieu of installing solar
powered flashing beacon assemblies, Licensee has extended its electrical system to
the flashing beacon assemblies to provide electrical service for operation of the
flashing beacon assemblies. The flashing beacon assemblies are owned and
maintained by the City. Licensee hereby agrees as a condition of this License to
maintain continuous electrical service to the City's flashing beacon assemblies, at no
cost to the City, and to operate and maintain its electrical system as necessary to
ensure continued operation of the flashing beacon assemblies by the City. In the event
electrical service to the City's flashing beacon assemblies is interrupted or terminated,
Licensee shall be required to make repairs to its electrical system required by the City
as may be necessary to provide continued electrical service for operation of the
flashing beacon assemblies by the City, within 10 days written notice by the City.
4.2 _Construction by Others within Encroachment Area. Licensee hereby
acknowledges that the License herein granted by City is non-exclusive, and that City
may grant subsequent encroachments within the Encroachment Area to other parties,
including public utility companies, other governmental agencies, and private parties.
Licensee hereby agrees to join and maintain membership with Underground Service
Alert of Southern California (Dig Alert) for the entire term of this 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 otherwork 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 liability 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 utility companies, other governmental agencies, and
private parties, including the. City, 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 License.
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Licensee further acknowledges its Encroachment consists of a privately owned,
underground, power and communication conduits, and its responsibility to ensure the
Encroachment is identified and appropriately marked within the Encroachment Area to
ensure future work within the Encroachment area does not result in injury or loss of life.
Licensee hereby indemnifies the City from any and all liability, in accordance with
Section 6 of this License, for any injuries or loss of life resulting from Licensee's failure
to comply with the requirements of maintaining the Encroachment and ensuring its
identification within the Encroachment Area through membership in USA/Dig Alert.
4.3 Relocation of Encroachment within City Right-of-Way. In the event of a
conflict with an underground utility proposed by any public agency or private party
whose proposed utility is approved for installation by City within the Encroachment
Area, Licensee hereby agrees to relocate the Encroachment, at Licensee's sole
expense, as necessary to remove any such conflict with an underground utility
proposed by any public agency or private party. Licensee shall prepare relocation
plans for the Encroachment and submit to the City Engineer, as well as the affected
public agency or private party, for review and comment within thirty (30) days notice
from City of the underground utility conflict. Licensee shall relocate the Encroachment,
as directed by the City, pursuant to Sections 2, 3, and 5 of this License, except,
however, that relocation of the Encroachment, as approved by City, shall commence
no later than thirty(30)days approval of relocation plans for the Encroachment by City.
5.0 Installation and Maintenance of Safety Precautions. Licensee shall, in
connection with the construction and maintenance of the Encroachment, provide, install, and
maintain such lights, barriers, warning signs or other safety precautions as are reasonably
necessary to protect anyone utilizing the City Property for whatever reason. In the event that
the City determines that suitable safety precautions are not being provided by Licensee, the
City may, after two (2) days notice from City to Licensee, provide, install and maintain such
safety precautions. If the City provides the safety precautions pursuant to this Section 5, City
shall submit an invoice to Licensee for payment of the safety precautions installed by City,
including administrative fees, and Licensee shall pay such invoice received within thirty (30)
days for such work performed. Failure to pay any invoice submitted to Licensee by City within
thirty (30) days shall automatically terminate the License herein granted.
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
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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 attomeys'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 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. Licensee shall procure and maintain, at its sole cost and expense,
and submit concurrently with its execution of this License, in a form and content satisfactory to
City, public liability and property damage insurance against all claims for injuries against
persons or damages to property resulting from Licensee's use of the Encroachment within the
Encroachment Area under this License. Insurance shall be kept in full force and effect during
the term of this License, and shall not be cancelable without thirty (30) days written notice to
City of any proposed cancellation. Certificates of insurance evidencing the foregoing and
designating the City, its elected officials, officers, employees,- agents, and volunteers as
additional named insured by original endorsement shall be delivered to and approved by City
prior to City's approval of this License. The procuring of such insurance and the delivery of
policies, certificates, and endorsements evidencing the same shall not be construed as a
limitation of Licensee's obligation to indemnify City, its elected officials, officers, agents,
employees, and volunteers.
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8.1 Minimum Scope of Insurance. The minimum amount of insurance
required hereunder shall be as ws:
Com rehe ive general ability and personal injury with limits of at least
($ ,00(0,000) combined single limit coverage per occurrence.
For any claims related to this License, Licensee's insurance coverage shall be
primary insurance as respects City and its respective elected officials, officers,
employees, agents, and volunteers. Any insurance or self-insurance maintained by
City and its respective elected officials, officers, employees, agents, and volunteers
shall be in excess of Licensee's insurance and shall not contribute with it.
8.2 Sufficiency of Insurers. Insurance required herein shall be provided by
authorized insurers in good standing with the State of California. Coverage shall be
provided by insurers admitted in the State of California with an A.M. Best's Key Rating
of B++, Class VIII, or better, unless otherwise acceptable to the City.
8.3 Verification of Coverage. Licensee shall furnish City with both
certificates of insurance and endorsements, including additional insured endorsements,
affecting all of the coverages required by this License. The certificates and
endorsements are to be signed by a person authorized by that insurerto bind coverage
on its behalf. All proof of insurance is to be received and approved by the City before
approval of this License. City reserves the right to require Licensee's insurers to
provide complete, certified copies of all required insurance policies at any time.
Verification of Insurance Coverage may be provided by: (1) an approved
General Endorsement Form for the City of Palm Springs or (2) an acceptable
Certificate of Liability Insurance Coverage with an approved Additional Insured
Endorsement with the following endorsements stated on the certificate:
1. "The City of Palm Springs, its officials, employees and agents are named
as an additional insured" ("as respects Encroachment License No. 10-02"may
be included in this statement).
2. 'This insurance is primary and non-contributory over any insurance or
self-insurance the City may have"("as respects Encroachment License.No. 07-
03" may be included in this statement).
3. "Should any of the above described policies be cancelled before the
expiration date thereof, the issuing company will mail 30 days written notice to
the Certificate Holder named." Language such as, "endeavor to" mail and "but
failure to mail such notice shall impose no obligation or liability of any kind upon
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the company, its agents or representative" is not acceptable and must be
crossed out. See example below.
In addition to the endorsements listed above, the City of Palm Springs shall be
named the certificate holder on the policy.
All certificates and endorsements are to be received and approved by the City
before this License is approved.
Cancellation Example:
SHOULD ANY OF THE ABOVE REFERENCED POLICIES BE
CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THE
ISSUING INSURER WILL ENDEAVOR TO MAIL 30 DAYS*
WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED
HEREIN BUT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE
NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE
INSURER, ITS AGENTS OR REPRESENTATIVES.
*The broker/agent can include a qualifier stating "10 days notice
for nonpayment of premium."
8.4 Deductibles and Self-Insured Retentions. Any deductibles or self-
insured retentions must be declared to and approved by the City. At the option of the .
City, either the insurer shall reduce or eliminate such deductibles or self-insured
retentions as respects the City, its elected officials, officers, employees, agents, and
volunteers; or, Licensee shall procure a bond guaranteeing payment of losses and
related investigations, claim administration, and defense expenses.
8.6 Severability of Interests (Separation of Insured). This insurance
applies separately to each insured against whom claim is made or suit is brought
except with respect to the limits of the insurer's liability.
8.6 Insurance Increase. Not more frequently than one(1)time every three
(3) years, if, in the opinion of the City, the amount of public liability and property
damage insurance coverage at that time is not adequate, the City may require
modifications to the required insurance coverage in this Section 8. City shall notify
Licensee, and Licensee hereby agrees to provide City with certificates and
endorsements evidencing City's required increased insurance coverage amounts within
thirty (30) notice from City. Failure of Licensee to provide City with certificates and
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endorsements evidencing City's required increased insurance coverage amounts within
thirty (30) days shall automatically terminate the License herein granted.
9.0 Termination. The License is terminable with or without cause by City at any
time. Licensee shall remove the Encroachment and restore the Encroachment Area on the
City Property to its former condition, at Licensee's sole cost and expense, within thirty (30)
days notice from City. In the event Licensee fails to remove the Encroachment and restore the
Encroachment Area on the City Property within thirty (30) days notice from City, City shall
have the right to do so without notice to Licensee. Licensee shall immediately reimburse the
City for all expenses incurred by City in the removal of the Encroachment and restoration of
the Encroachment Area on the City Property. Said amounts shall accrue interest from the
date the expenses were incurred by 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: Desert Healthcare District
1140 Indian Canyon Drive
Palm Springs, CA 92262
Attn: Peter Young, CPA, COO
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.
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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 Licensee 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 or the 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 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.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first set
forth above.
"LICENSEE"
Desert Healt re District, a political subdivision
of the state Californi
By:
Print Name: � T—rv(
ITS: r.Oc7�G �
Ll NSEE TITLE
(Licensee shall have signature notarized)
ATTEST: CITY OF PALM SPRINGS,
a California charter city
By: By:
James Thompson, City Clerk David H. Ready, City Manager
APPROVED AS TO FORM: APPROVED BY CITY COUNCIL:
Date:
Agreement No.:
Douglas Holland, City Attorney
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STATE OF CA IFORNIA }
V&QMj } SS
i
COUNTY OF } (�\
O4�.-Jiu1 before me, '�l Notary Public,
DATE
personally appeared who proved to me on the basis
of satisfactory evidence to be the a on(s ose name(s) i a e subscribed to the within instrument and
acknowledged to me that e/they executed the same i hi leer/their authorized capacity (4), and that by
&refifthsksignatures(21 on the instrument the personA,or the entity upon behalf of which the person(Vacted,
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. (Seal)
WITNESS n and o cial seal.
:NCot'oa
AMANTRA PRIORMM. #1859508 zry Public-CaliforniazRiverside CountySignature of Notary Mm.Ex ire JW.30,2013
STATE OF CALIFORNIA }
} SS
COUNTY OF }
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. (Seal)
WITNESS my hand and official seal.
Signature of Notary
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EXHIBIT "A"
DESCRIPTION OF LICENSEE PROPERTY
A portion of Lot 69 & Lot 70, shown on the John Mel Tract, Map Book 13, Page 18, recorded July 8,
1925,official records of Riverside County, also shown as a portion of Parcel 2 of Parcel Map 26085, in
Book 188 of Parcel Maps, page 91, recorded December 11, 1996, official records of Riverside County,
California, within the City of Palm Springs, California.
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EXHIBIT "B"
DEPICTION OF CITYPROPERTYAND ENCROACHMENT
A portion of Mel Avenue, shown as Lot C on John Mel Tract, Map Book 13, Page 18, recorded July 8,
1925, official records of Riverside County, along with a portion of Mel Avenue dedicated to the City on
Parcel Map 26085, in Book 188 of Parcel Maps, page 91, recorded December 11, 1996, official
records of Riverside County, California, within the City of Palm Springs, California.
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