HomeMy WebLinkAbout9/15/2004 - STAFF REPORTS (14) DATE: September 15, 2004
TO: City Council
FROM: Director of Public Works/City Engineer
SUBJECT: ENCROACHMENT LICENSE FOR 2380 SMOKEWOOD AVENUE.
RECOMMENDATION:
It is recommended that the City Council authorize the issuance of an Encroachment License
to William and Barbara Johnson, to allow the construction of a 36" high retaining wall within
the public right-of-way.
SUMMARY:
On January 25, 2001 the City approved an encroachment agreement for the construction of
a garden wall in the public right-of-way along the north property line of lot 17, block"E"of the
Araby Tract Map Book 13, Pages 61 and 62, which encroaches into the frontage of Araby
Drive. Since then the owners of said property have made revisions to an approved grading
plan.The revisions show the need to construct a retaining wall along the westerly frontage of
Araby Drive. Staff recommends that the City Council approve the issuance of an
Encroachment License that would allow the construction of a 36" high retaining wall within
the public right-of-way.
BACKGROUND:
The owners of the property located at 2380 Smokewood Avenue started the construction of
their new home in June of 2000. Since the construction date, the owners have applied for
several modifications to the project through the Planning Department, as well as
encroachment agreements for garden walls within the existing right-of-way along the
frontage of Araby Drive through the Engineering Department and all have been approved.
The proposed retaining wall in the public right-of-way would prevent erosion from the grade
changes to the project site. There are no other encroachment licenses in the vicinity of Araby
Drive and Smokewood Avenue for retaining walls or permanent structures.
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APPROVED
DAVID J. BARAKIAN
Director of Public Works/City Engineer
APPROVED:
City Manager
ATTACHMENTS:
1. Encroachment License
2. Legal description Exhibit "A"
3. Exhibit "B"
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
` THIS ENCROACHMENT LICENSE (the "License") is entered into this 16 day of
J V NE , 2004, by and between William and Barbara Johnson ("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 Imown as 2380 Smokewood Avenue,
(APN 510-242-004), 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 construct a 36"high retaining wall, located 3.5' east of the License
Property's line into the right-of-way of Araby Drive which will encroach on the City Property in the
location depicted on Exhibit "B" attached hereto and incorporated herein by reference
("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. A copy of the Permit is attached hereto and incorporated hereon by
reference as Exhibit"C".
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 teens 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 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.
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 the Encroachment.
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
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 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 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
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liabilities (collectively "claims or liabilities") that maybe 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
conmection 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 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, inswing 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 properly 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 fi-equently 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.
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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 teen, and on a renewal policy not less
than twenty(20) days before expiration of the tern of the policy.
9. Termination. This License is terminable at such time when the City 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 limited 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 coimnmucation
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
Alshire&Wynder, LLP
Tower 17, 18881 Von Karman Ave., Ste. 400
Irvine, CA 92612
Attn: David J. Aleshire, Esq.
Licensee: Williarn and Barbara Johnson
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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 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 conmection 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.
15. 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. 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 benefatted
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"
William Johnsol
By:
C
Barbara L. Jol n
(Licensee shall have signature notarized)
ATTEST: CITY OF PALM SPRINGS,
a municipal corporation
By: By:
City Clerk—Patricia A. Sanders City Manager—David H. Ready
APPROVED AS TO FORM:
Alshire & Wynder, LLP
City Attorney
APPROVED BY CITY COUNCIL:
By:
Its:
Resolution No.:
6 /DA7
08/20/2004 FRI 14:02 FAX 2002/002
AUG-20-2004 FRI 11:24 AN CITY OF PALM SPRINGS FAX NO. 7603228360 P. 07
IN WITNESS WHEREOF,the parties have executed this Agreement as ofthc date first sct forth
above.
"LICENSEE"
BY:
William P.Johnson
By:
Barbara L.Johnson
(Licensee shall have signature notarized)
ATTEST: CITY OF PALM SPRINGS,
a municipal corporation
By: By:
City Clerk—Patricia A. Sanders City Manager—David H.Ready
APPROVED AS TO FORM:
Aisliire&Wynder, LLP
Adkmey.
APPROVED BY CITY COUNCIL:
By:
Its:
Resolution No.:
6
08/20/2004 FRI 11 :9l [TX/RX NO 74101 IM007
STATE OF CALIFORNIA)
SS.
COUNTY OF RIVERSIDE) \� l
On 0 4 before me, TOl g i1 V)
Date i , I 1
Notary Public,personally appeared W 1 11 \ a m P. a rx 4 l�(k 1- be -cf
ki-personally known to me Oit$pi d t n rh x sfasto�3�eivdenee—
to be the person whose name 450 subscribed to the within instrument and
acknowledged to me that the executed the same in his+e
authorized capacity ies , and that by -1 ' ie'• signature on the
instrument the person(S)i or the entity upon behalf of which the personG
acted, executed the instrument.
ALA � WITNESS my hand and official seal.
�ommM A, +I 11e7✓!2J
MV:Notary PubgC•Ca�fomla
RfvMie fairly vn,
W21.20MAjIL
NOTARY'SSIGNATURE a.
.
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
EXHIBIT "A"
DESCRIPTION OF LICENSEE PROPERTY
Legal Description:
Lot 17 in Block"E" of the Araby Tract, as per map recorded in Book 13 Pages 61 and 62 of
maps, records of Riverside County, California.
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Neighbors Exist. Wall
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1 William Johnson Residence
1 2380 Smokewood Ave.
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MINUTE ORDER NO. /' 1
AUTHORIZING THE ISSUANCE OF AN ENCROACHMENT
LICENSE TO WILLIAM AND BARBARA JOHNSON, TO ALLOW
THE CONSTRUCTION OF A 36" HIGH RETAINING WALL
WITHIN THE PUBLIC RIGHT-OF-WAY, SPECIFICALLY
LOCATED AT 2380 SMOKEWOOD AVENUE
I HEREBY CERTIFY that this Minute Order, authorizing the issuance of an encroachment
license to William and Barbara Johnson, to allow the construction of a 36" high retaining wall
within the public right-of-way, specifically located at 2380 Smokewood Avenue, was adopted by
the City Council of the City of Palm Springs, California, in a meeting thereof held on the 15ffi day
of September, 2004.
PATRICIA A. SANDERS
City Clerk
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