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HomeMy WebLinkAbout04651 - ARTEE BS DELI 190 TAHQUITZ CYN OUTDOOR DINING ENCROACHMENT Page 1 of 1 Cindy Berardi From; Rick Minjares Sent Friday, February 22, 2008 3:50 PM To: Cindy Berardi Subject: RE: Artee B's Yes you can close the agreement for Artee B's. As for the other request, can you give me a copy of the agreement, I will need to go in the field to verify. Rick Minjares Engineering Assistant Engineering/Public Works Department City of Palm Springs P.O. Sox 2743, Palm Springs, Ca 92263 Ph(760) 323-8253 x 8737 Fx (760) 322-8360 Rick=Minjares@pal msprings=ca,gov From: Cindy Berardi Sent: Tuesday, February 19, 2008 3:40 PM To: Rick Minjares Subject: Artee B's Since Artee B's (corner of N. Indian Canyon and Tahquitz Canyon) is closed can we close out the"Outdoor Dining Encroachment Agreement"#4651? Also, remember the"Encroachment License" I left you the long-winded voicemail about in the last week or two? (I've attached it to refresh your memory.) Should I close this out since you thought they may never have gone ahead with the wall construction after hearing what the City's insurance requirements would be? Cindy 5crardi DCPUL• City Clerk Office or Lhe City Clerk � City of Palm Springs P 0 [lox?745 Palm Springs,CA 9Z 6,� (760) 31 z-5355 Ci �)crardiOpa Frin 5-ca. ov 2/22/2008 Page 1 of 1 Cindy Berardi From: Cindy Berardi Sent: Tuesday, February 19, 2008 3:49 PM To: Rick Minjares Subject: Artee B's Since Artee B's (corner of N. Indian Canyon and Tahquitz Canyon) is closed can we close out the "Outdoor Dining Encroachment Agreement"#4651? Also, remember the "Encroachment License" I left you the long-winded voicemail about in the last week or two? (I've attached it to refresh your memory.) Should I close this out since you thought they may never have gone ahead with the wall construction after hearing what the City's insurance requirements would be? j��'i+uty(,�ikj C.Icrk QF6cc nF ncc City cj,,r Cil9 of Palm 5FrmFs r,O.box 17,13 Palm Springs,CA 9wz6Z (760) 311-3i55 [_inrly.�erarCjirt�naln��rin`5-Ca-,�v� 2/19/2008 DOC ti 2002-7S4000 12/31/2002 08:00R Fee:NC Page 1 of 12 FREE RECORDING REQUESTED BY Recorded in Official Records Country of Riverside AND WHEN RECORDED MAIL TO: Gary L. Orso Assessor, County Clerk & Recorder CITY OF PALM SPRINGS IIIIIII IIIIII IIII 1131 El IEI 11111 III 111111 PO Box 2743 Palm Springs, CA 92263-2743 Attn: Engineering Division _ --_ - - - - - - - ---- City Clerk M S U PA^GE SIZE OA PCOR NOCOR GMF MISC J1`� A R L COPY LGPIG REFVNG NCHG EMM OUTDOOR DINING ENCROACHMENT AGREEMENT THIS ENCROACHMENT AGREEMENT ( "Agreement") is entered into this 16th day of November, 2000, by and between Artee B' s Deli, ( "Applicant") , whose address is 190 East Tahquitz Canyon Way, Palm Springs, CA 92262-6431, 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. R E C I T A L S : 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 190 East Tahquitz Canyon Way, Palm Springs, California 92262-6431, (APN 513-092-004 ) , 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 a (n) 2 chairs and 1 table (NO umbrellas) 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 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. 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; II 2 IIAIIIIIfIIIIIIIIII�IIIIIIIIIIIIIII11lIIIIIIIIIIII�II�AI iar©e2 ©f2©83een (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 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. 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 I I 3 III I I III II ��IIII IIII III II II I��II I III 0 3 0 40a3 12 31 0nR 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 Citv. 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 . 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 . 4 I I^IIII IIII�II 0111111111111111111111111111111111111111 1111111111 I1III1111 11111111IIII1II1II 12 3©©�0&2pS300H 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 benefitted and/or restricted in the manner herein described. 5 IIIIIIIIIIIIIIIIIIIIIII IIII III INIIIIIIIIIIIIIIII 12 21�5 0208 00R IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first set forth above. A e B' s Deli, a Sole roped Worship N, Artie Bagdasarian, Owner C C'� 42 arie Bagdasarian %=2 06 "Applicants" (APPLICANT MUST HAVE SIGNATURE NOTARIZED) CITY OF PALM SPRINGS, a municipal corporation r7�f By: �s1 City Engineer "City" (CITY ENGINEER MUST HAVE SIGNATURE NOTARIZED) APPROVED AS TO OWNERSHIP & LEGAL DESCRIPTION �/ By: `����9/Lw yal'14 (NOTARY STATEMENTS ON FOLLOWING PAGE) 6 200 I(IIIII(IIIIIIIII(IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII iz60f 120%) STATE OF CALIFORNIA) SS. COUNTY OF RIVERSIDE)On 3(937, before me, Oa ry-iel. RoVnw , No-6y�j PjbilG date � personally appeared c1)0,\A CIU`QVC( 0 n U9 personally known to me OR ❑ jq-r-e e,d-t-a-me-an-the basis a a-sfae er ev-i(wien-ce to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his uthorized capacity, and that by his CARRIE ROVNEY signature on the instrument the person, or the Commission■1348457 z entity upon behalf of which the person acted, Notary Public-California > executed the instrument. Riverside County MyComm.E)0msMar26,2W6 Witness my hand and official seal. re of Notary (SEAL) STATE OF CALIFORNIA) SS. COUNTY OF RIVERSIDE) On 10e,V&)ra,g�k: 20, d_UD before me, yV 4 date l personally appeared igIC73�rL�- /� C�I�Sr�f t 7 0r 7� 1✓14fs6� �L fah rrn , Cl seRa-l.]._y�n-ewn7 t -me OR proved to me on the basis of satisfactory evidence to be the person (s) whose name (s) X/are subscribed to the within instrument and acknowledged to me that the/they executed the same in hi-s-¢h-er/their authorized capacity(ies) , and that by hA-a- xar/their signature (a) on the instrument the person (a) , or the entity upon behalf of which the person(s) acted, executed COMPAD L. RILEY the instrument. Cornur Puk3Ton-'.r1251397 j( „o nq, Ablic-Colirormica Witness my hand and official seal. _ 1:lveridn County Sign ture of Notary (SEAT,) 7 Al II II IIII�II I II IAlll II III II II 3 e 002ogzes�izr F©R or 8 STATE OF CALIFORNIA) SS. COUNTY OF RIVERSIDE) On before me, date personally appeared ❑ personally known to me OR ❑ proved to me on the basis of satisfactory evidence to be the person (s) whose name (s) 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 (a) on the instrument the person (s) , or the entity upon behalf of which the person (s) acted, executed the instrument. Witness my hand and official seal. Signature of Notary (SEAL) 8 I I I I I I 8002-794983 12 IlAlllll^�IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII�IIIIIIIIIII 131J8 1P 90A EXHIBIT "A" LEGAL DESCRIPTION OF OWNER/APPLICANT PROPERTY The leasehold on the southeast corner of Block 26 as shown in Map Book 009, Page 432 Map Showing Resurvey of Townsite of Palm Springs recorded in San Diego County, California. EXHIBIT "A" TO OUTDOOR DINING ENCROACHMENT AGREEMENT 9 IlAllIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIAIIIIIIIIIII i �09 4083E© EXHIBIT "B" DESCRIPTION OF PUBLIC RIGHT-OF-WAY That portion of Indian Canyon Drive North dedicated to the public right-of-way, as shown on/in records of the San Diego County Recorder, Book 009, Page 432 in San Diego County, California. EXHIBIT "B" TO OUTDOOR DINING ENCROACHMENT AGREEMENT 10 IIIIIIIIIIIIIIIIIIIIIIIIIN111IIIIII111NIIIII,IFIII, 121319 �eoFO$2�e� EXHIBIT "C" 1 of 2 DEPICTION OF CITY PROPERTY AND ENCROACHMENT INCLUSIVE OF PERMIT CONDITIONS I ' mi i � II i� K F l� _r r �.V1'YI IyO�Ct�7' Cii9 ! @1 IIIIII IIIIIII IIII������1111 Hill 1111111111111111111 IN z�3 0 za p£©$3�eR EXHIBIT "C" CONTID. 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 by the 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 seat two persons only. Additional seating per table shall require the approval of the Director of 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 the 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 pedestrain traffic along the entire property frontage. 12 II�IIIIII11111111111111101111111111I111111111111111111 z ©e 12 o'f 1� p