HomeMy WebLinkAbout5/4/2005 - STAFF REPORTS (13) CITY COUNCIL May 4, 2005
CONSENT CALENDAR
Subject: ENCROACHMENT LICENSE FOR 530 W. TAHQUITZ CANYON
WAY.
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Initiated by: David J. Barakian, Director of Public Works/City Engineer
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SUMMARY:
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! Approval of this item will authorize issuance of an encroachment license for
maintenance of existing retaining walls; pool decking, carport canopy, entrance
j steps and landscaping within the Tahquitz Canyon Way right-of-way adjacent to 530
W. Tahquitz Canyon Way. The license allows for improvements constructed since
1987 to remain in the right of way. The license requires insurance naming the City
as additionally insured to provide protection for liability.
RECOMMENDATION:
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Approve Minute Order No. approving Agreement No. an
Encroachment License to Steven Cheroske, to allow the maintenance of existing
retaining walls, pool decking, carport canopy, entrance steps and landscaping within
the public right-of-way at 530 W. Tahquitz Canyon Way.
STAFF ANALYSIS:
In 1979 the City sent a letter to the previous owner's contractor regarding the
construction of an illegal carport canopy constructed within what was believed to be
the setback for the property. The owner was asked to have the canopy removed
within 10 days. At that time the Owners and City Staff appeared to believe that the
westerly 500' feet of Tahquitz Canyon Way was a private street. Since 1987 there
have been several permits issued by the City on the subject property for retaining
walls, pool additions and wrought iron railings. All of the permits were approved by
Planning Department Staff and Planning Commission. Research in 2001 by Public
Works and Engineering found that the westerly 500' feet of Tahquitz Canyon Way
was a public road. Subsequent research by Public Works and Engineering
determined that the previously submitted plans by the previous owner in 1987
depicted the property lines incorrectly and portions of the improvements have been
constructed within the right-of-way. This information regarding the illegal
encroachments was not disclosed to the current owner at the time of purchase. The
issuance of the encroachment license will temporarily relieve the City of any liability
until a permanent garage is constructed by the owner to take the place of the illegal
carport canopy and a vacation of right-of-way can be initiated to permanently
resolve the encroachment issues.
Item No. 2 . L.
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CITY COUNCIL May 4, 2005
! ENCROACHMENT LICENSE FOR 530 W. TAHQUITZ CANYON WAY.
Page 2
David J. Barakian, Director of David H. Ready, City Manager
Public Works/City Engineer
Attachment: Exhibit "A" Planning Approval
Exhibit "B" Planning Commission Approval
Exhibit "C" Survey Topo
Exhibit "D" Encroachment License
Minute Order
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FREE RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
CITY OF PALM SPRINGS
P.O. Box 2743
Palm Sprigs, California 92263-2743
Attn: City Clerk and
Public Works and Engineering
Filing Fee Exempt Per Govenunent Code 6103 (For Recorder's Use Only)
ENCROACHMENT LICENSE
THIS ENCROACHMENT LICENSE (the "License") is entered into this 1-5 day of
of 6) 12005,by and between Steven Cheroske("Licensee")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 530 W. Tahquitz Canyon Way,
(APN 513-110-005), more particularly described 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 maintain retaining walls,pool decking,carport canopy,entrance
steps and landscape areas which encroach on the City Property in the location depicted on Exhibit
"B" attached hereto and incorporated herein by reference ("Encroaclunent").
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 Encroaclrrnent, Licensee
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shall notify the City that such work 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 Building and Safety before
Licensee commences performance of any work on the Encroaclunent.
4. Maintenance. Licensee and its successors shall have the right and obligation to
maintain, repair and replace, at its own cost and expense, the Encroachment so as to keep the
Encroaclunent 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 for the purposes noted in Section 3 and the maintenance of the Encroachment. 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.
5. 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, wanting 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. Indemnity. Licensee hereby agrees to indemuify 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, enfors, 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;
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(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 therefrom and;
(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. 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.
S. Insurance.
8.1 Insurance Requirement. During the entire term of this License,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
Encroaclu-nent or Licensee's use of the Encroachment. Such public liability and property damage
insurance shall also provide for and protect the City 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 6 and 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.
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
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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. Termination. The License is terminable with or without cause by the city at any
time.Applicant shall remove the encroachment and restore the City Properly 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. Notices. Any notice, demand, request, document, consent, approval, or
connnunication 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
Woodruff, Spradlin and Smart
701 South Parker Street, Suite 8000
Orange, CA 92868-4760
Attn: Douglas C. Holland
Licensee: Steven Cheroske
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.
It. Attorneys Fees. In any action between the patties hereto seeking enforcement of this
License, or in connection with the License or the Permit, the prevailing patty in such action shall be
entitled to have and to recover from the other party its reasonable attorneys'fees and other reasonable
expenses in correction with such action or proceeding in addition to its recoverable court costs.
12. . 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.
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13. 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. Governing Law. This License shall be governed by and construed in accordance with
the laws of the State of California.
15. Severability. The invalidity or ruienforceability of any provision of this License with
respect to a particular puTy 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. Recordation. This License shall be recorded in the Office of the Comity 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. 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"
Byf�`�
Steven Cheroske
(Licensee shall have signature notarized)
ATTEST: CITY OF PALM SPRINGS,
A municipal corporation
By: _ By:_
City Clerk—James Thompson City Manager—David H. Ready
APPROVED AS TO FORM:
City Attorney APPROVED,AS TO FORM:
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Douglas C. Holland By:
APPROVED BY CITY COUNCIL:
By:
Its:
Resolution No.:
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STATE OF CALIFORNIA)
SS.
COUNTY OF RIVERSIDE)
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� On � 1_ QCC(1� � i a�5 before me, �(,1' rrlQ. O�YIe,� I I Naro� � P1Ab1lG
Date
Notary Public, personally appeared Ste-ven CherDsKe-
❑ personally laown lu we ORX-Voved to me on the basis of satisfactory evidence
to be the person whose name is/afa subscribed to the withiu instrument and
acknowledged to me that he/4ie46y executed the same in his/horMTeir
authorized capacity(ies-), and that by his/hef4hea• signature(s) on the
instnuent the personO, or the entity upon behalf of which the person(e,)
acted,executed the instrument.
(SEAL) WITNESS my hand and official sea].
CARRIE ROVNEY //t•
` Commfalon#1348457 l /(, � 'FDU
Notdr "Ic-Confomia irnTe>avc crr.T,
RNOalde County I
j .�— — — MyC«nn.6gkesMor26,24o6t
STATE OF CALIFORNIA)
SS.
COUNTY OF RIVERSIDE)
On before me,_
Date
Notary Public,personally appeared
❑ personally known to me OR ❑ proved to me on the basis of satisfactory evidence
to be the person whose name 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), or the entity upon behalf of which the person(s)
acted,executed the instrument.
(SEAL) WITNESS my hand and official seal.
NOTARY'S SIGNATURE
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DEsc�ip
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ALL THAT PORTION OF SPRING STREET AS SHOWN ON THE MAP OF PALM SPRINGS AS
RECORDED IN MAP BOOK 9 AT PAGE 432,RECORDS OF SAN DIEGO COUNTY, CALIFORNIA
DESCRIBED AS FOLLOWS;
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COMMENCING AT THE SOUTHEAST CORNER OF BLOCK 30 OF SAID MAP OF PALM SPRINGS
AND THE SOUTHEAST CORNER OF LOT 5 OF PALM SPRINGS PALISADES AS RECORDED IN
MAP BOOK 19 AT PAGE 23 OF MAPS,RECORDS OF RIVERSIDE COUNTY CALIFORNIA;
THENCE SOUTH 890-50'-00" WEST ALONG THE SOUTHERLY LINE OF SAID BLOCK 30 AND
SAID LOT 5,A DISTANCE OF 144.79 FEET TO THE SOUTHWEST CORNER OF SAID LOT 5;
THENCE SOUTH 000-08'-00"EAST A DISTANCE OF 33.00 FEET TO THE CENTERLINE OF
TAHQUITZ CANYON WAY(SPRING STREET)AND THE TRUE POINT OF BEGINNING;
THENCE CONTINUING SOUTH 000-08'-00"EAST A DISTANCE OF 17.00 FEET;
THENCE NORTH 890-50'-00"EAST AND PARALLEL TO SAID CENTERLINE, A DISTANCE OF
144.79 FEET;THENCE NORTH 000-08'-00"WEST A DISTANCE OF 17.00 FEET 0 THE
CENTERLINE OF SAID SPRING STREET;
THENCE NORTH 890-50'-00"WEST ALONG SAID CENTERLINE A DISTANCE OF 144.79 FEET
TO THE TRUE POINT OF BEGINNING.
P*4W
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No.LS4146
* E,0=6.30-06
9 OF CA4\F
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EXHIBIT 18 "
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LINE DATA
I O BEARING DISTANCE
j O1 N 00°08'00"W 17.00'
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LOT 6
SE C OR OF
LOT 5 SL/(.� ((Ot'�y�K 30 PER
( V }�1,..SGf
PALM SPRINGS PALISADES
M8 19/23 POC
cW N 89°50'00"E 144.79'
0
j o „�; VACATED MARCH 9, 1929 6
o "� BOOK 801, PAGE 191 O.R.
W SPMMG STREET (TAHOU)TZ CANYON WAY) MW
-POBa
N 89050'00"E 144.79'
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LAND Sp Q
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0 W
LS. 4146 3
DR 6/M/04 W
so f5 o RAPH/C SCA3o so �9j � ' ^
C A\-\E
SCALE 1.30'
Cl T Y OF PALM SPRINGS - ENCROACHMENT PLA T
LEGAL DESCRIPTION: DAWD J. BARMAN RCE NO. 28931
-POR7/ON OF SPRING STREET (TAHQUI7Z CANYON WAY) AS SHOWN EXPIRATION �31 07
ON MAP OF PALM SPRINGS. RECORDED IN MAP BOOK 9, AT PAGE 432, C 'y
SAN DIEGO COUNTY, CALIFORNIA.
DESIGN BY SCALE. FILE(NO.:
D.G.H. 1"=30'
CHECKED BY. WO-if` SHEET NO.:
JOHN L. ANBORN. PLS NO. 4146 EXP. 6/3O104 J.L.S. 04-117 1 OF 1
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MINUTE ORDER NO. 7666
APPROVING AN AGREEMENT NO. A5093
i WITH STEVEN CHEROSKE FOR THE
ISSUANCE OF AN ENCROACHMENT
LICENSE TO ALLOW MAINTENANCE OF
EXISTING RETAINING WALLS, POOL
DECKING, CARPORT CANOPY, ENTRANCE
STEPS AND LANDSCAPING WITHIN THE
PUBLIC RIGHT-OF-WAY AT 530 W.
TAHQUITZ CANYON WAY A05093
I, James Thompson, City Clerk of the City of Palm Springs, California, hereby
certify that this Minute Order approving an Agreement No. A5093 with Steven
Cheroske for the issuance of an Encroachment License to allow maintenance of
existing retaining walls, pool decking, carport canopy, entrance steps and
landscaping within the public right-of-way at 530 W. Tahquitz Canyon Way, was
adopted by the City Council of the City of Palm Springs, California, in a meeting
thereof held on the 4th day of May, 2005.
James Thompson, City Clerk