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HomeMy WebLinkAbout10/6/2004 - STAFF REPORTS (23) F' Y August 31,2004 Public Works and Engineering Department City of Palm Springs 3200 East Tahquitz Canyon Way r - Palm Springs,CA 92262 Attention: Rick Minjares Mr. Minjares, Please take the necessary steps to remove an encroachment license (#A3547)from my property at 1080 East Marshall Way. The offending wall has been removed and the front yard has been landscaped. The City of Palm Springs' requirement of additional insurance for this encroachment makes it difficult to get competitive property insurance rates. Please call or email me if you have any questions or need additional information. Thank you for your consideration. ie-;� Burrows 1080 East Marshall Way Palm Springs, CA 92262 Home: (760) 325.0615 Cell: (310) 963.4694 Email:jburrows(a,dc.rr.com City of Palm Springs 3200 E. Tahquitz Canyon Way ( __ � c Dlic epartment Palm Springs, CA 92263 Memo To: Troy 6utzlaff, A5515tant City Manager. From: Rick Minjares, Engmeermg Technician Date: 9/15/2004 Re: 1080 If Marshall Way, APN # 507-14 1-012, Agreement#A3547. In regards to 1060 Marshall Way, the owner of the property 15 a5hng the City of Palm SprmgS to terminate an exi5bn6j Encroachment License (Instrument No. 1 995-2 1 1 907) that had been executed by the previous owners for a block wall in the public right-of-way. In March of 2004 the new owner (Mr. Jim 6urrow5) requested information regarding the process of termmating the license. In August of 2004, Mr. Burrows informed me that the existing encroachment (block wall) had been removed, and requested an mspecton. I inspected 1 080 Marshall Way and found that the block wall and encroachment had been removed, and the need to maintain the existing agreement is no longer needed. On September 8, 2004 we received a formal written request by Mr. 6urrow5 to begin the termination of the existing agreement. It 15 my opinion that all necessary steps to begin the final termination of the agreement have been met by the owner, and should now be scheduled for approval by City Council. Tink you, ( w�` f Ri k MinJar 1 a� 3r� r', <ar •, r 8a� 1 IN" rl 3 d 4 *� a a ND aaafts c,,ts►w tt1t..N MVC-013F.JPG 2004/08/30 09;43:00 i f 14 i#•i Ac` M - F6h 4: e: R L. No �,,ay �,.ea.�,.► P2Ci J 76- MVC-01 F.JPG 2004/08/3009:42:30 2119U7 RECEIVED FOR F , ORD AT&000'CLOCiC Bernard & Betty Miller FREE RECORDING REQUESTED BY Encroachment License AND WHEN REFOADED MAIL TO: Repair & Maintain 3' Wall � �, 'JUN 3 01995 AGREEMENT #3647 R18630, 6-7-95 City Clerk �' • frars�a�m> �7�a ^f P.O.Box 2743 \ 50 � �� OG /7 oR Palm 5 Fwwr lef Springs,CA 92263-2743 ' - Fns6 .order1s Use Only) ENCROACHMENT LICENSE THIS ENCROACHMENT LICENSE (the)"License") is entered into this eth day of May, 1995, by and between Bernard E land Betty J. Miller, ("Licensee") and the CITY OF PALM SPRINGS, a municipal corporation ("City") . R E C I T A L S: 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 1080 Marshall Way, Palm Springs, CA 92262, (APN 507-141-012), more particularly depicted on Exhibit "A" attached hereto and incorporated herein by reference ("Licenaee Property's) . 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 a block wall which encroaches on the City property in the location depicted on Exhibit "B" 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. 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. 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. Maintenance. Licensee shall have the right and obligation to maintain, repair and replace, at its own coat 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. S. 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 � 7c -s' C:\BP51\O0CUMENT\AGR\ENCR0ACH �c�,2 211907 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 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 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 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 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. A11 such insurance as required by this Section 6 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 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. This License is terminable at such time when the City CJ�"�'�" reasonably determines that the City Property or any part thereof will be used for a purpose which is nonconductive to the Encroachment, including but not tllimited • tn C:\UP51\DOCUMENT\AGR\ENCROACH �/ 6 `N, - 211907 to, construction, reconstruction or maintenance of the City Property. Upon making such determination, City shall give notice to Licensee that the License is thereby terminated (the "Termination Notice") . upon termination of the Encroachment, Licensee shall remove the Encroachment and restore the City Property to its former condition, at Licensee's sole cost and expense, within ninety (90) days following the Termination Notice. In the event Licensee 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 to the Licensee by the City. Licensee shall immediately reimburse the City for all out of pocket expenses which were expended in order to remove the encroachment and restore the City Property. Said amounts shall accrue interest from the date expended by the City at the maximum legal rate of interest. 10. 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: Marna Van Horn With Copy to: Rutan & Tucker Post Office Box 1950 Costa Mesa, CA 92628-1950 Attn: David J. Aleshire, Esq. Licensee: Bernard E. and Betty J. Miller 1080 Marshall Way Palm Springs, Ca 92262 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. Attorneys Pees. 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. 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. 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. is. Severability. The invalidity or =enforceability 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. 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 benefitted 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. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date . first set forth above. C:\WP51\00CUMENT\AGR\ENCR0ACH 44� 211907 "" QLICENSEE" By: / -ZM.r�- -^ " Bernard E. Miller Bet J(j Mll � (Licensee shall have signature notarized) \\ ATTEST: C OF PALM SP NOS, municipal co a ion By: QG=��— By: Cit er,k APPROVED AS TO FORM: Rutan & Tucker City Att ne APPROVED BY CITY COUNCIL: By: Its: APPROVED BY THE CITY COUNOC BY 114S.NO. —? Resolution No.: --2yy 7 STATE OF CALIFORNIA) SS. COUNTY OF RIVERSIDE) 1 On �C7�/ / before me, �Lx4/ d to / Notary Public, personally ap`p�.ared7 -�/.�. (/ mer-OR t _proved to me on th# basis of sfactory evidence to kkkbbNfffe ____the personQ whose named ismsubscribed to the withi instrument and acknowledged to me t he/sh c e executed the same in his/her/ EfAINE L.WEDEKIND authorize capacit and that by his�fher < a' COMM.f l0AD857 signatures on the instrument the persoxa�, or the z E Notary Public-Califomla g entity upon behalf of which the perscnED acted, RIVERSIDE COUNTY executed the instrument. My Comm.Expires FED 3.1999 WITN�EJSS my hand and ffic' seal. , NOTARY'S SIGNATURE (SEAL) STATE OF CALIFORNIA) SS. COUNTY OF RIVERSIDE) On 6 -7-r/S before me, y G /J `/Fne K//x/D /�Orn/L�f lic/,$L/ems date Notary Public, personally appeared A'k /,GJ. 7//1./.'1wa�LGn-+Q ^Q4/[uLa.cFi� , `personally known to me GR---t-�-"-' ^^ ^�. t-�Ki.de�- // to be the persontp whose namelp is/©subscribed to the within instrument and acknowledged to me that he/she he- executeddrhe same in his/her/ e authorized cap (i acityes1J and that by his/her hei EIAINE L.WEDEKIND signature on the instrument the person®, or e i r' ^ COMM.I 10A8&57 entity upon behalf of which the person( acted, z ._�;y'� Notary Public-Califomla $ executed the instrument. Z RIVERSIDE COUNtt My Comm.Expires FED0,1999 WIT'lT /jm��SS my hand and off'cial seal. ' YS S�IA2URE (SEAL) 'wX C:\WP51\DOCUMENT\AGR\ENCROACH ''gym 211907 EXHIBIT "A" DEPICTION OF CITY PROPERTY AND ENCROACHMENT L� Lot 5 of Tachevah Vista Tract an shown in Map Hook 21, Page 26 of records of the County of Riverside Recorder's Office, Riverside County, California �w h R YRAxN aiN kl) FF, EL, 50 77; 0,70m 1ij a /OSO yl• EL, 499 50 /086 V � e I 3, , .. .. 2+74_! ' T.6.69 _27 i /.L / . .�! •z ST,4. 2i'48 4O- I r . -;�- .y, STA.Z*.3 Dn . . v h G. 41 E•C. M /090 - �� 3,� � ,. f•F. EL 497, 95 3p 'bl lr � •r " "".A•r./yt22.5'. 1065 99.35L F,F.EL, 498.45 s• ' 6 . it I t W y o f SHEET ND. 2 FOH •7.• t D/s'7:!'+S9 b v' PROF/LES OF i1�EST EAST 3' ,t R ! 7c9 EXHIBIT "A" TO ENCROACHMENT AGREEMENT MINUTE ORDER NO. APPROVING THE TERMINATION OF AN ENCROACHMENT LICENSE (#A3547) BETWEEN THE CITY OF PALM SPRINGS AND BERNARD E. AND BETTY J. MILLER FOR CERTAIN REAL PROPERTY LOCATED AT 1080 MARSHALL WAY, PALM SPRINGS, CA 92262 (APN 507-141-012). --------------- I HEREBY CERTIFY that this Minute Order, approving the termination of an encroachment license (#A3547) between the City of Palm Springs and Bernard E. and Betty J. Miller for certain real property located at 1080 Marshall Way, Palm Springs, CA 92262 (APN 507-141-012)was adopted by the City Council of the City of Palm Springs, California, in a meeting thereof held on the 6th day of October, 2004. PATRICIA A. SANDERS City Clerk