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City Council Staff Report
Date- JULY 15, 2009 CONSENT CALENDAR
Subject: APPROVAL OF AN ENCROACHMENT LICENSE FOR A BUILDING
OVERHANG SOLAR SHADE AND CONCRETE BLOCK PLANTERS
WITHIN RIGHT-OF-WAY LOCATED AT 901 NORTH PALM CANYON
DRIVE, SECTION 10, TOWNSHIP 4 SOUTH, RANGE 4 EAST
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 right-of-way. The Director of
Public Works is authorized to issue encroachment permits to authorized parties to install
encroachments within public right-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 Encroachment
License to Prescott Place, LLC, a California Limited Liability Company, will allow
building overhang solar shade and concrete block planters within the public right-of-way
at 901 North Palm Canyon Drive.
RECOMMENDATION:
1) Approve Agreement No. an Encroachment License with Prescott Place,
LLC, a California limited liability company, authorizing construction of permanent
encroachments into the public right-of-way located at 901 N. Palm Canyon Drive;
and
2) Authorize the City Manager to execute all necessary documents; and
3) Direct the City Clerk to record the Encroachment License with the Riverside
County Recorder.
ITEMiVO. r,�
City Council Staff Report
July 15, 2009- Page 2
Approval of Encroachment License at 901 N Palm Canyon Dr.
STAFF ANALYSIS:
On May 1, 2009, Dennis Cunningham, contractor for Prescott Place, LLC, a California
limited liability company, applied with the Public Works and Engineering Department for
an encroachment license for construction of permanent building overhang solar shade
and concrete block planters at 901 North Palm Canyon Drive (APN 505-263-006), in
accordance with the Engineering Department conditions of approval for Case 5.110, PD
327, TTM 35999.
The applicant requests authorization for an encroachment of building overhang solar
shades, extending six feet and six inches (6-6") into the public right-of-way. The
building overhang shade extends out from the balconies fronting N. Palm Canyon Drive,
above any passing pedestrians on the sidewalk below. The overhang shade does not
support any part of the balcony within the public right-of-way, and is merely provided for
solar control of the east fagade of the building. The attached Exhibit "D" shows the
structural details for the overhang shade.
The applicant also requests authorization to install concrete block planters, each
approximately two feet (2'-0") in height and four feet (4'-0") in width with a six foot (6-0")
wide pedestrian walkway between them. Minimum required pedestrian clearance will
be maintained on the sidewalk. The attached Exhibit "E" shows the planter detail.
The conditions of approval for this project require that the City Council approve an
Encroachment License for any proposed permanent structures that encroach into the
public right-of-way. The applicant has submitted construction plans and received
preliminary approval by the Building Department, subject to the City Council approval of
the Encroachment License.
Staff recommends that City Council approve the Encroachment License with Prescott
Place, LLC, for construction of permanent building overhang solar shades and concrete
block planters located at 901 North Palm Canyon Drive (APN 505-263-006).
FISCAL IMPACT:
None.
Submitted,
U4L . r lA/ .ram
David J. Barakian Thomas J. Wilion
Director of Public Works/ ngineer Assistant City Manager
David H. Ready
City Manager
Attachments:
1. Encroachment License 062
2. Structural Details, Exhibits "D" and "E"
FREE RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
CITY OF PALM SPRINGS
PO Box 2743
Palm Springs, CA 92263-2743
Attn: Engineering Division
City Clerk
(For Recorder's Use Only)
Filing Fee Exempt Per Government Code 6103
ENCROACHMENT LICENSE
THIS ENCROACHMENT AGREEMENT("Agreement") is entered into this 14T" day of May,
2009, by and between Prescott Place, LLC, a California Limited Liability Company
("Applicant"), whose address is 879 N Palm Canyon Drive, Palm Springs, CA 92262and the
CITY OF PALM SPRINGS, a California charter city ("City"), whose address is P.O. Box 2743,
3200 E. Tahquitz Canyon Way, Palm Springs, CA 92263.
RECITALS:
A. Applicant is the owner of a portion of that certain real property located in the City of
Palm Springs, County of Riverside, State of California commonly known as 901 N. Palm
Canyon Drive, Palm Springs, Ca 92262 (APN 505-263-006), more particularly described on
Exhibit"A" attached hereto and incorporated herein by reference("Applicant Property"). City
is the owner of certain fee and/or easement interests in that certain real property located in
the City of Palm Springs, County of Riverside, State of California adjacent to the Applicant
Property and encroachment is more particularly described in Exhibit "B" hereto ("City
Property").
B. Applicant desires to maintain building overhang solar shade, and masonry block
planters,to be placed in a portion of the public right-of-way hereto on the City property which
encroachment is more particularly show on Exhibit"C" ("Encroachment"). City has agreed to
grant to Applicant an encroachment permit ("Permit") for the Encroachment in accordance
with Chapter 14.16 of the City of Palm Springs Municipal Code on the condition that Applicant
executes this Agreement.
NOW THEREFORE, the parties hereto agree as follows-
1.0 License. The City hereby grants to Applicant a license revocable or relocatable with or
without cause at any time by the City to construct and/or maintain the Encroachment upon all
of the terms and conditions of the Permit and this Agreement ("License").
1
2.0 Covenants,
2.1 In General. Applicant hereby agrees to construct, maintain, relocate and
remove the Encroachment in accordance with Chapter 14.16 of the City of Palm Springs
Municipal Code, as amended from time to time.
2.2 Maintenance. Applicant shall maintain, repair and replace the Encroachment
and the City Property so as to keep the Encroachment and such area in a neat, clean, first
class condition and in good order and repair, free of weeds, trash and debris at all times. All
tables, chairs, or other items shall be kept in a clean, safe condition,and shall not be placed in
a manner that impedes or prevents pedestrian traffic. In the event Applicant does not maintain
the Encroachment and the City Property as required herein, the City may terminate the
License as more particularly provided in Section 3.0.
2.3 Indemnity. Applicant hereby agrees to indemnify and defend the City, its
officers, agents and employees against and to hold and save each of them harmless from, any
and all actions, suits, claims, damages to persons or property, losses, costs, penalties,
obligations, errors, omissions or liabilities (collectively "claims or liabilities") that may be
asserted or claimed by any person, firm or entity arising out of or in connection with the
location, construction, maintenance, relocation or removal of the Encroachment,but excluding
such claims or liabilities arising from the sole negligence or willful misconduct of the City, its
officers, agents or employees, who are directly responsible to City, and in connection
therewith:
(a)Applicant will defend any action or actions filed in connection with any of said claims
or liabilities and will pay all costs and expenses, including legal costs and attorneys'
fees incurred in connection therewith;
(b) Applicant will promptly pay any judgment rendered against the City, its officers,
agents or employees for any such claims or liabilities and Applicant agrees to save and
hold the City, its officers, agents and employees harmless therefrom;
(c) In the event the City, its officers, agents or employees is made a party to any action
or proceeding filed or prosecuted against Applicant for such damages or other claims
arising out of the location, construction, maintenance, relocation or removal of the
Encroachment,Applicant agrees to pay the City, its officers, agents or employees, any
and all costs and expenses incurred by the City, its officers, agents or employees in
such action or proceeding, including, but not limited to, legal costs and attorneys fees.
2.4 Covenants Running With the Land. The covenants and restrictions by
Applicant set forth in this Agreement: (a) are made for the direct benefit of the City Property;
(b) will constitute covenants running with the land and equitable servitudes; (c) will bind
Applicant and every person having any fee, leasehold or other interest in any portion of the
Applicant Properly 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.
2
3.0 insurance.
3.1 Insurance Requirement. During the entire term of this License, Licensee shall
procure and maintain public liability and property damage insurance, at its sole expense, in an
amount not less than ONE MILLION DOLLARS ($1,000,000) combined single limit, insuring
against all liability of Licensee and its authorized representatives arising out of and in
connection with the Encroachment or Licensee's use of the Encroachment. Such public
liability and property damage insurance shall also provide for and protect the Licensor against
incurring any legal cost in defending claims for alleged loss.
3.2 Primary Policy; Additional Insured. All such insurance as required by this
Section 6 shall be primary insurance and shall name the City as additional insured_
3,3 Insurance 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.
3.4 Insurance Company. All insurance required under this Section 8 shall be
issued by an insurance company authorized to do business in the State California, with a
financial rating of at least A-3A status as rated in the most recent edition of Best's Insurance
Reports or such comparable report should Best's Insurance Reports no longer be available.
3.5 Modification or Cancellation of Policy. All insurance required pursuant to this
Section 8 shall contain an endorsement requiring thirty (30) days written notice from the
insurance company to both parties before cancellation or change in the coverage, scope, or
amount of any policy. Each policy, or a certificate of the policy, together with evidence of the
payment of premiums, shall be deposited by Licensee with the City at the commencement of
the term, and on a renewal policy not less than twenty(20) days before expiration of the term
of the policy.
4.0 Termination. The License is terminable with or without cause by the City at any time.
Applicant shall remove the Encroachment and restore the City Property to its former condition,
at Applicant's sole cost and expense,within thirty(30)days of written notice from the City. In
the event Applicant fails to remove the Encroachment and restore the City Property within said
time period, the City shall have the right to do so without notice. Applicant shall immediately
reimburse the City for all expenses required 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.
5.0 Miscellaneous.
3
5.1 Notices. Any notice, demand, request, document, consent, approval, or
communication either party desires or is required to give to the other party or any other person
shall be in writing and either served personally or sent prepaid, first-class mail to the
addresses listed on the first page of this Agreement. Either party may change its address by
notifying the other party of the change of address in writing. Notice shall be deemed
communicated at the time personally delivered or in seventy two (72) hours from the time of
mailing if mailed pursuant to this Section 4.1.
5.2 Attorneys Fees. In any action between the parties hereto seeking enforcement
of this Agreement, or in connection with the License or the Permit,the prevailing party in such
action shall be entitled to have and to recover from the other party its reasonable attorneys'
fees and other reasonable expenses in connection with such action or proceeding in addition
to its recoverable court costs.
5.3 Amendment or Modification. This Agreement may not be modified or
amended except by written agreement executed by the then-owner of the Applicant Property
and the City Property and recorded in the Office of the County Recorder, County of Riverside,
California.
5.4 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
5.5 Severability. The invalidity or unenforceability of any provision of this
Agreement with respect to a particular party or set of circumstances shall not in any way affect
the validity and enforceability of any other provision hereof or the same provision when
applied to another party or to a different set of circumstances.
5.6 Recordation. This License shall be recorded in the Office of the County
Recorder, Riverside County, California, and it shall serve as notice to all parties succeeding to
the interest of Licensee or the city that their use of the Licensee Property and the City
Property shall be benefited and/or restricted in the manner herein described.
4
i; L 6
IN WITNESS WHEREOF,the parties have executed this Agreement as of the date first set forth
above_
Prescott Place, LLC, a California Limited
Liability Company
(Benson & Nichols Trust, dated February 13,
2003 - its Sole Member and Manager)
Sar ipld Benson, Trustee
Stephen C. Nichols, Trustee
"Applicant"
(APPLICANT MUST HAVE SIGNATURE NOTARIZED)
C PALM SPRINGS, a
Municipa rporation
By:
Marcus Fuller
Asst. Public Works Director
Asst. City Engineer
(ASST. CITY ENGINEER MUST HAVE SIGNATURE NOTARIZED)
VED AS TO OWNERSHIP & LEGAL
DESC ON
By:
Fel• a rime
Engine ring ssistant
(NOTARY STATEMENTS ON FOLLOWING PAGE)
5
ATTEST: CITY OF PALM SPRINGS,
a California charter city
By: By:
City Clerk City Manager
APPROVED AS TO FORM:
City Attorney
APPROVED BY CITY COUNCIL:
Minute Order No.
Date:
Agreement No.:
ACKNOWLEDGMENT
State of California
County of Riverside )
On May 14, 2009 before me, Ruth Bryan, Notary Public
(insert name and title of the officer)
personally appeared Sarah J. Benson and Stephen C. Nichols
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s)4slare
subscribed to the within instrument and acknowledged to me that hepzhe/they executed the same in
#44w/their authorized capacity(ies), and that by-NsA#er/their signature(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.
Rl1TH BRYAN
WITNESS my hand and official seal. COMM.518987&t t
ANERUX ODUNTYY
My Comm.Exp.Nov 17,7010 r
Signature (Seal)
U'Vin
EXHIBIT "A"
LEGAL DESCRIPTION OF APPLICANT PROPERTY
LOT 111 OF MERITO VISTA, AS SHOWN BY MAP ON FILE IN BOOK 12, PAGE 94 OF
MAPS, RECORDS OF RIVERSIDE COUNTY, CALIFORNIA.
EXCEPTING THEREFROM THE WESTERLY 132 FEET. CONVEYED TO JAMES V.
GUTHRIE BY DEED RECORDED ON NOVEMBER 19, 1937 IN BOOK 352, PAGE 180 OF
OFFICIAL RECORDS.
ALSO EXCEPTING THEREFROM THE SOUTHERLY 3.55 FEET AND THE EASTERLY 20
FEET THEREOF.
EXHIBIT "B"
LEGAL DESCRIPTION OF CITY PROPERTY AND ENCROACHMENT
A PORTION OF NORTH PALM CANYON ROAD, 50 FEET WIDE HALF STREET, SHOWN
IN RIVERSIDE, COUNTY ROAD ABSTRACT 6210, ALSO SHOWN AS "COUNTY
HIGHWAY', IN MAP OF MERITO VISTA, ON FILE IN BOOK 12, PAGE 94 OF MAPS,
RECORDS OF RIVERSIDE COUNTY, CALIFORNIA, ALONG WITH A PORTION OF
HERMOSA PLACE, SHOWN AS SUCH, IN MAP OF MERITO VISTA, ON FILE IN BOOK 12,
PAGE 94 OF MAPS, RECORDS OF RIVERSIDE COUNTY, CALIFORNIA, AS SHOWN ON
EXHIBIT "C".
EXHIBIT "C"
HERMCSA PLACE
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2121 E. TAHQUIIZ CANYON WAY — SUITE 3
PALM SPRINGS, rAUFORNIA M62
TELEPHONE 760-325-1557 FAX 760-327-8214
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