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HomeMy WebLinkAbout04653 - WOODYS BEACH HUT OUTDOOR DINING ENCROACHMENT DOUGHERTY 332 NPC BAMBOOZ SEE A4676 pA�M s City of Palm Springs Office of the City Clerk (760) 323-8204 MEMORANDUM C'44/F09L Date: May 20, 2003 To: Public Works, Rick Minjares From: City Clerk AGREEMENT#4653 —Woody's Beach Hut— Outdoor Dining Encroachment Please let us know the status of the above agreement, and if it may be closed. STATUS: ( "&, &Ica- COMPLETED: REMAIN OPEN UNTIL: A 4,7(Q (✓JGn�f edl�Lcux�bt72i 6�2r�o� l D to & Initials L / CLOSE AGR l IGl / fc�2K b €Add& CIO-,eJ / Signature Richard, from what I understand this encroachment has now been reassigned to Bambooz Beach Hut, Agreement#4676. So, I think we need to close this one. PLEASE RETURN TO THE OFFICE OF THE CITY CLERK c-clk\fonns.std\agr-clse.mem • OOCO# 2001-547942 11/05/2001 08:00A Fee:NC FREE RECORDING REQUESTED BY Page 1 of 10 AND WHEN RECORDED MAIL TO: Recorded in official Records County of Riverside Gary L. Orso CITY OF PALM SPRINGS Assessor, County Clerk R Recorder PO Box 2743 n Division I IIIIII IIIIII IIIIII IIIII III IIIII IIIIIII III IIIII IIIIIIII Att Sprl�ggS, n 92263-27�3 City Clerk ^_^ X M S U PAGE SIZE DA PCOR NOCOR SMF MISC A H L COPY LONG REFUND NCHG E% Filing Fee Exempt Per Government Code 6103 (For Recorder's Use Only) M AG OUTDOOR DINING ENCROACHMENT AGREEMENT THIS ENCROACHMENT AGREEMENT("Agreement")is entered into this 12th day of September, 2001, by and between Robert Dougherty,d/b/a/ Woody's Beach Hut, ("Applicant"), whose address is332 North Palm Canyon Drive, Palm Springs, CA 92262, and the CITY OF PALM SPRINGS, a municipal corporation("City"),whose address is PO Box 2743, 3200 E. Tahquitz Canyon Way, Palm Springs, CA 92263, Attn: Department of Building and Safety. RECITALS: A. Applicant is the owner of that certain real property located in the City of Palm Springs, County of Riverside, State of California commonly known as 332 North Palm Canyon Drive, Palm Springs, California 92262, (APN 513-081-015), 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 more particularly described in Exhibit "B" hereto ("City Property"). B. Applicant desires to construct or maintain 4 chairs and 2 tables with umbrellas anchored with bases per City of Palm Springs Std. Dwg. No. 910, or equal, to be placed in the public right-of-way more specifically described in Exhibit"C"hereto on the City property ("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"). 2.0 Covenants. 1 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 mayterminate 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) applicantwill defend any action oractions filed in connection with anyof sa*.d claims or liabilities and will payall 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 oremployees for anysuch 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 anyfee,leasehold or other interest in any portion of the Applicant 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. 3. Insurance. 2 III iIIIII III II IIII IIIIIIIII IIIII III IN 1�?5�z of i02�+�+F 0 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 bythis 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 propertydamage insurance coverage atthattime is notadequate, the City Manager may require modifications to this coverage. 3.4 Insurance Company. All insurance required underthis 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 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. 5.0 Miscellaneous. 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. 3 III II IIIIIIIIII IIIIIII II I IIIII II 11 ©03©07[02n F 5.2 Attorneys Fees. In any action between the parties hereto seeking enforcement of this Agreement,or in connection with the License orthe 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 bywritten agreement executed bythe 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 itshall 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. IN WITNESS WHEREOF,the parties have executed this Agreement as of the date first set forth above. _--��dy'p Beach Hut • � d'��z��al Robert Dougherty "Applicant" (APPLICANT MUST HAVE SIGNATURE NOTARIZED) CITY OF PALM SPRINGS, a municipal corporation By: �/✓o✓ ml1/°i City Engineer "City" (CITY ENGINEER MUST HAVE SIGNATURE NOTARIZED) APPROVED AS TO OWNERSHIP & LEGAL DESCRIPTION By:7'VI 1�rq (NOTARY STATEMENTS ON FOLLOWING PAGE) 4 iIIII II II IIII IIIII II IIIIII II III III III 112n 4 £ 10 F STATE OF CALIFORNIA) SS. COUNTY OF RIVERSIDE) / On �/� 7 o2i � n/ before me,'Li ' <�. 1"'ewb Now� ' � date I personally appeared �e �✓ �X1t uaGvy , proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his&dthorized capacity,and that by his signature on the instrument the person, or the ELAINE L. WEDEKIND entity upon behalf of which the person acted, Ur yupf > COMM.#1206984 c NOiARYPUBLICCgLIFORNIAL) executed the instrument. c ' RIVERSIDE COUNTY () COMM.EXP.FEB.3,2003 -' Wi ess my hand and official seal. Signature of Notary (SEAL) STATE OF CALIFORNIA) SS. COUNTY FO/F%RIVERSIDE) On --��f o befre m e, G,9 r C, date IYe7J 12 Y a,64/ C personally appeared P,q(/ID , proved to me on the basis of satisfactory evidence to be the personW whose name(&) is/am subscribed to the within instrument and acknowledged to me that he/may executed the same in his/4iiF MARGOT C.DFSROSIERS authorized ca acit CowdabnM12&WM p y(te and that by hislJ a xeil �yp�.CaAtamia signature(4j on the instrument the person(, or the Rfvowe County entity upon behalf of which the person( acted, aw 0A'YOMM.WresJun2.2DD4 executed the instrument. Witness my hand and official seal. Signature of Notary (SEAL) 5 �© 0419�2 � 5 F�F1111111111111111111 IN EXHIBIT "A" LEGAL DESCRIPTION OF OWNER/APPLICANT PROPERTY The north 50 feet of Lot 8, Block 24, as shown in recorded Map Book 009, Page 432, Townsite of Palm Springs, San Diego County, California. EXHIBIT "A" TO OUTDOOR DINING ENCROACHMENT AGREEMENT 6 III II II III II III II I I II 111111111111 IN 11/05/2 01 0942 8 00R s of 10 EXHIBIT "B" DESCRIPTION OF PUBLIC RIGHT-OF-WAY That portion of Palm Canyon Drive North, 40 feet wide, dedicated to the public right-of- way, as shown in recorded Map Book 009, Page 432, Townsite of Palm Springs, San Diego County, California. EXHIBIT "B" TO OUTDOOR DINING ENCROACHMENT AGREEMENT 7 IIIIIIIIIIIIilllllll III I1111111111111111111IIII ttJofJf/©4;G&2FrF EXHIBIT "C" 1 of 2 DEPICTION OF CITY PROPERTY AND ENCROACHMENT INCLUSIVE OF PERMIT CONDITIONS PA��zw - -/ V �', w �1. MoRob G c�N NUT wrrk eAuV 45 �. � If � G✓AL.eG✓.Q y Rif - EXHIBIT "C" TO OUTDOOR DINING ENCROACHMENT AGREEMENT 8 IIIIII IIIIII IIIIII(IIII III(IIII II III (IIIIII III IIII 11 0`!18 ,f 10 i9F EXHIBIT "C" CONT'D. 2 of 2 PERMIT CONDITIONS FOR OUTDOOR DINING 1. Seating within the new paved area shall be subject to a Land Use Permit (or amendment to existing LUP)and approval bythe Director of Planning and Zoning prior to installation of any seating in the newly paved area. 2. Seating within the new paver area shall be limited to non-alcoholic beverages and food services only. 3. To provide adequate pedestrian circulation,each table shall seattwo persons only. Additional seating pertable shall require the approval of the Directorof Planning and Building. 4. Tan, green and terra cotta colors shall be used for all outdoor furniture. 5. No additional product advertising shall be permitted on the outdoor umbrellas. 6. Outdoor seating areas shall be washed down daily. 7. Outdoor seating within the new paver area shall be permitted for restaurants or other beverage service uses that have immediate or direct frontage on Palm Canyon drive in t,ie Center Business District. 8. All outdoor furniture shall be set back a minimum of two (2)feet from the face of curb. Umbrellas shall be properly secured to prevent any harm as per City of Palm Springs Std. Dwg. 910 (attached). 9. All outdoor umbrellas shall be a minimum of 6-1/2 to 7 feet (installed) in height, measured from sidewalk. 10. All outdoor furniture on City property shall be removed at the end of each business day. 11. A minimum width of five(5)feet shall be kept free at all times for pedestrian traffic along the entire property frontage. 9 I IIIII IIIIII IIIIII IIIII III IIIII IIiIIII III IIIII IIII IN11 Fi501999of 19 68�66R NO. REVISIONS APPROVED DATE FACE OF CURB oQ TABLE, 6' DIA. UMBRELLA ON z w J 6-1/2' TALL POLE, AND CHAIRS g OD FOOTPRINT N Q m o � Q IL M. 0O O Il QI Q u7 _ I Nti N POSITION OF UMBRELLA HOLDER INTERLOCKING PAVER/PCC AREA SIDEWALK AREA M 2-1/2" DIA. X 12" GALV PIPE SLEEVE 1/2" DIA. X 6" STEEL RETAINING PIN = m p 3/8" DIA. STEEL LIFTING EYES, PC CONCRETE BASE I � _ 4 TYP. ,. 520-D-2500 �F, 18 'I .� _i 4" r #3� REBAR CD NOTE: d� -&o A 3" WIDE REFLECTIVE ORANGE STRIP SHALL BE PUT AROUND THE LIFTING EYE DETAIL PC CONCRETE BASE. CITY OF PALM SPRINGS APp�6!!e DATE 5 DEPARTMENT OF PUBLIC WORKS 8931 ER RIGHT-OF-WAY ENCROACHMENT RIAWN DN: MV FILE NO. R C.E. HSTANDARDS TABLE DETAIL CHECKED BY: DJ6 DWG NO 910