HomeMy WebLinkAbout12/7/2005 - STAFF REPORTS (20) O,�ppLM S'09
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C�<<FORN�P City Council Staff Report
CITY COUNCIL DECEMBER 7, 2005
CONSENT CALENDAR
Subject: APPROVAL OF ENCROACHMENT LICENSE TO THE AGUA CALIENTE
BAND OF CAHUILLA INDIANS FOR A PRIVATE FIBER OPTIC
COMMUNICATION FACILITY WITHIN TAHQUITZ CANYON WAY
From: David H. Ready, City Manager
Initiated by: Public Works and Engineering Department
SUMMARY
In accordance with Chapter 14.16 of the Palm Springs Municipal Code, a permit is
required for any encroachment within the City's public rights-of-way. The Director of
Public Works is authorized to issue encroachment permits to authorized parties to install
encroachments within public rights-of-way; however, installation of permanent
encroachments of a type or use determined by the Director of Public Works to require
additional liability protection for the City requires approval of a formal agreement, known
as an Encroachment License, by the City Council. Approval of the recommended
E=ncroachment License to the Agua Caliente Band of Cahuilla Indians will allow the
installation of a private fiber optic communication line within Tahquitz Canyon Way.
RECOMMENDATION:
1) Adopt Minute Order No. approving Agreement No. ,.an
Encroachment License between the Agua Caliente Band of Cahuilla Indians and
the City of Palm Springs, for installation of a private fiber optic communication
line within public right-of-way, from 600 E. Tahquitz Canyon Way to 707 E.
Tahquitz Canyon Way.
2) Authorize the City Manager to execute all necessary documents.
STAFF ANALYSIS:
Donald Violick, Chief Engineer for the Agua Caliente Band of Cahuilla Indians (ACBCI),
applied with the Public Works and Engineering Department for an encroachment within
the Tahquitz Canyon Way right-of-way. The ACBCI has its offices on the north side of
Tahquitz Canyon Way, at 600 E. Tahquitz Canyon Way. They are currently expanding
Item No.
City Council Staff Report
December 7, 2005 - Page 2
ACBCI Encroachment License
their offices, and have leased spaces on the south side of Tahquitz Canyon Way, at 707
E. Tahquitz Canyon Way. They have a need to install a private fiber optic
communication line from their current offices at 600 E. Tahquitz Canyon Way to their
new offices at 707 E. Tahquitz Canyon Way. Their request is to install a private fiber
optic communication line across to the median, and extending east-west within the
landscaped median.
The fiber optic communication line will be installed at an appropriate depth with a
marker tape above it to further protect and identify the facility. The Encroachment
License recommended for approval includes provisions for the ACBCI to join and
maintain membership with United Service Alert of Southern California (USA/Dig Alert)
and that the ACBCI shall be solely responsible for maintaining its private facility, and for
identifying and marking its location within Tahquitz Canyon Way when construction or
excavation may occur within the Encroachment Area.
Due to the fact that the ACBCI is a federally recognized Indian Tribe, the requirement
for providing the City with general liability insurance protection has been deferred, until
such time (if any) that the Director of Public Works determined that the City requires
additional protection in the form of general liability insurance. The proposed
Encroachment License has been reviewed and approved by the City Attorney.
FISCAL IMPACT: IFinance Director Review:/ .
There is no cost to the City associated with the propose&Encro achment License, and
all fees associated with its preparation and approval have been paid by the ACBCI.
David J..Barakian Thomas J. Wilson
Director of Public Works/City Engineer Assistant City Manager
David H. Ready, CjLy�A�I° ager
ATTACHMENTS: ''
1. Encroachment License
2. Minute Order
ATTACHMENT
ENCROACHMENT LICENSE
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)
ENCROACHMENT LICENSE
(ALL PROPERTIES OTHER THAN INDIVIDUAL RESIDENTIAL PROPERTIES)
THIS ENCROACHMENT LICENSE (the "License") is entered into this day of
O�-2005, by and between AGUA CALIENTE BAND OF CAHUILL 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").
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 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.
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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.
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
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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;
(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,
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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.
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.
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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.
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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 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 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.
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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: [
Ail
Thomas J. Davis
Its: Chief Planning and Development Officer
(Licensee shall have signature notarized)
ATTEST: CITY OF PALM SPRINGS,
a municipal corporation
By: By:
City Clerk City Manager
APPROVED/ TO FORM:
City Att me
APPROVED BY CITY COUNCIL:
By:
Its:
Resolution No.:
STATE OF CALIFORNIA)
SS.
COUNTY OF RIVERSIDE)
On I `0arlllhi ,-V'I ZoyS beforeme, �11� Ll6 C- IM -Dingy
DATE I,
personally appeared �VIDIYIPrS �• Dr�1�15
`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
6` I�AC,lA C. iNl=t7iNa�� instrument the person(s) acted, executed the instrument.
COMM.#1333804
U < - hoTA IVEFUDECOUL,EOR"" 0 Witness my hand and official seal.
!- �� RIVER610E COl1MTV
` i•� V A"VCOMM E.Prra Dec.6,2DG5 I'
Signature of Notary
STATE OF CALIFORNIA)
SS.
COUNTY OF RIVERSIDE)
On before me,
DATE
personally appeared
❑ personally known to me OR ❑ proved to me on the basis of satisfactory evidence to be
the person(s) whose name(s) is/are subscribed to the
within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized
capacity(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
8
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: 9 & l,tc�! C . /\AL ClWA
Commission #: 3 �� T
Place of Execution: �{\ I UC (2R5I p F �U/PU
Date Commission Expires: { C. .
Date: I �i
Signature: / ��
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.
s
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.
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EXHIBIT "C"
DEPICTION OF CITY PROPERTY AND ENCROACHMENT
INCLUSIVE OF PERMIT CONDITIONS
- - - - - I CALLS EL SEGUNDO
- - -33.45 -� / - - - - -
R.O.W. 66.55'
I I I R.O.W.
liml ; j it
D l l 11 i t 600
2 I I I A N 508 005-C O
II p l l I PARC LA
IC I II
I -N
I I ,
iI
I I
I10
ID � I ' I '
10
I
APN 508-570-009 I I Z I1 i ,I I LBEGIN 4" OPTIC
PARCEL B j FIBER LINE
I
707 I (I I II,I VI
I
� ' ENCROACHMENT AREA
LY -. WITHIN ROAD RIGHT-OF-WAY
END 4 OPTIC
' I j100' I 700
FIBER LINE I I I I
NORTH
32.67'
R.O.W. i l i 11 67.33'
IJ i R.O.W.
- - - - - - _ 50'I
CALLS ALVARADO
DESIGN BY: SCALE: FILE NO.:
RIGHT-OF-WAY ENCROACHMENT FUP NTS 508-055-003
EXHIBIT
CHECKED BY: DATE SHEET NO.:
PORTIONS OF S 1/2, NW 1/4&N 1/2,SW 114,Section 14,T 4 S, R 4 E MLF 11�03�05 1 OF 1
MINUTE ORDER NO.
APPROVING AGREEMENT NO. ,.AN
ENCROACHMENT LICENSE BETWEEN THE AGUA
CALIENTE BAND OF CAHUILLA INDIANS AND THE
CITY OF PALM SPRINGS, FOR INSTALLATION OF
A PRIVATE FIBER OPTIC COMMUNICATION LINE
WITHIN PUBLIC RIGHT-OF-WAY, FROM 600 E.
TAHQUITZ CANYON WAY TO 707 E. TAHQUITZ
CANYON WAY
I, James Thompson, City Clerk of the City of Palm Springs, hereby certify that
this Minute Order approving Agreement No. .an Encroachment License
between the Agua Caliente Band of Cahuilla Indians and the City of Palm
Springs, for installation of a private fiber optic communication line within public
right-of-way, from 600 E. Tahquitz Canyon Way to 707 E. Tahquitz Canyon Way,
was adopted by the City Council of the City of Palm Springs, California, in a
meeting thereof held on the 7th day of December, 2005.
James Thompson, City Clerk