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HomeMy WebLinkAboutA3377 - DAVEYS HIDEAWAY 292 EPC ENCROACHMENT A M Lo • 00 � n W M N n N w m � � Ul IR rn OD M 0 + 1 I= p N , a UA , .�_'°�c �' z v 0) / �•' CTt --� N B < E RECORDING REQUESTED BY 1, � L1 - m m 1 WHEN RECORDED MAIL TO: 'P C g i w C+ „e W a1 �q 4�- --J1< r � CITY OF PALM SPRINGS ATTN: CITY CLERK Ie ' N I P.O. Box 2743 Aso W C7� \ Palm Springs, CA 92263 (For Recorder's Use Only ENCROACHMENT LICENSE THIS ENCROACHMENT LICENSE (the "License") is entered into this 21 day of April., 1994, by and between Brent Davey, ("Licensee") and the CITY OF PALM SPRINGS, a municipal corp,)ration ("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 292 East Palm Canyon Drive, more particularly depicted 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 depitcted on Exhibit "B" ("City ]Property") . C. Licensee desires to construct a 3' foot outdoor dining patio perimeter wall and main entry awning support structure which will encroach 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 Encooachment, 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 et.iigat-ion to maintain, repair and replace, at its own cost and expanse, 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. 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, 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 C:\WP51\DOCUMENT\AGR\ENCROACH ss,7a 23 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 encorachment 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: Doug R. Evans With Copy to: Rutan & Tucker Post Office Box 1950 Costa Mesa, CA 92628-1950 Attn: David J. Aleshire, Esq. Licensee: Brent Davey 292 E. Palm Canyon Drive 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 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 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. 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 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. C:\NP51\D0CUMENT\AGR\ENCR0ACH • 1970 w3 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. B. i ns L•ranc_. _ - -- 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. All 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 reasonably determines that the City Property or any part thereof will be used for r, r C:\WP51\DOCUMENT\AGR\ENCROACH • ` 19702:3 IN WITNESS WHEREOF, the parties have executed this Agreement a$ of the date first set forth above. j '� "L�CEN'SEE'Cf ATTEST: CITY a In nicipal torpor City CPerk+ APPROVED AS TO FORM: BY Ci y onager Rutan & T ker City Attor y APPROVED BY CITY COUNCIL: By: Its: ,�0� /�33 Resolution No. : CALIFORNIA ALL-PURPOSE ACKNOWLEDGIMENT No 5193 - - CAPACITYOPTIONAL SECTION G NER State of �/Y'S.�_ County of 9 Notary to fill in the data below, doing so may prove 'q invaluable to persons relying on the document. , rJ� CLS 0� QtA.eL,�..T.th � 6Alfll.tl r ?[ INDIVIDUAL On before me, — ?, DATE ( NAME, TITLE TITLEOF OFFICER .G.,"JANE DOE,N OTARYPUELI --E ❑CORPORATE OFFICER(S) eared a /Yte RJA�F,'aPersonallY pp NAME(S)OFSIGNERy \e . TITLE(S) I'd PARTNER(S) LIMITED ❑perseNallydeRwwn=te�rlae•- OR -( proved to me on the basis of satisfactory evidence ❑ ❑ to be the person(V whose name('e) Ware ❑ GENERAL l subscribed to the within instrument and ac- ❑ATTORNEY-IN-FACT knowledged to me that he/she/tkey executed ❑TRUSTEE(S) the same in his/4,&r lq# authorized ❑ GUARDIAN/CONSERVATOR y(' s�, and that by his/faer/tlaeN , l °` IllffiTiIA.NII:IiOIS -0 capacit re ❑OTHER:y ""' Comm !t 96F544 signature(t6) on the instrument the person(3), eoTARvweuc-�ulroRrrA or the entity upon behalf of which the 6Yr. M1,.I RNCrsftle County ��, r,. Nf1�d-,efdiiiExpireeNlry2,1,1996� person(S) acted, executed the instrument. SIGNER IS REPRESENTING: „I WITNESS my hand and official Seal. NAME OF PERSON(S)OR ENTITY(IES) L) Oyy SIGNATURE OF NOTARY i OPTIONAL SECTION , THIS CERTIFICATE MUST BE ATTACHED TO TITLE OR TYPE OF DOCUMENT r'� ,1CAlkJ-0-17AA, ` THE DOCUMENT DESCRIBED AT RIGHT: Vr NUMBER OF PAGES DATE OF DOCUMENT Though the data requested here is not required by law, It could prevent fraudulent reattachment of this form SIGNER(S)OTHER THAN NAMED ABOVE 6 . @1992 NATIONAL NOTARY ASSOCIATION•8236 Remmet Ave.,P O Box 7184•Canoga Park,CA 91 309-71 8 C:\WP51\D0CUMENT\AGR\ENCR0ACH EXHIBIT "A" DEPICTION OF CITY PROPERTY AND ENCROACHMENT EXISTING ONE STORY OFFICE ¢ I� O ¢ r u N O r ¢ w ©'"\ a NEW Y AWNING O 7 5 EXISTING BUILDING o: w Q I J a 3 z - - i 2 �- 3 I NEW DINING PATIO � (�_ L — — EXHIBIT "A" TO ENCROACHMENT AGREEMENT ACORD CBRTIFR WE OF LIABILITY INSU _ NCRSR LY DATE(MMIDD YY) AVBY-1 07/07/97 PRODUCER THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION Valley Insurance Service, Inc. ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE License# 0566246 HOLDER.THIS CERTIFICATE DOES NOT AMEND,EXTEND OR 861 South Oak Park Road ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. Covina CA 91723 COMPANIES AFFORDING COVERAGE Harold J. Borak COMPANY Phone No. 818-966-3664 FaXNn. 818-966-3895 A Clarendon National Insurance INSURED COMPANY B �,y.ya 1�qq��yyC Yy � Brenton Davey & Diane Davey COMPANY AkUtIYG11 DBA: Davey's Hideaway C 292 East Palm Canyon Drive COMPANY 1997 Palm Springs CA 92264 D COVERAGES ," " of Ppoe THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED,NOTWITHSTANDING ANY REQUIREMENT,TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN,THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES.LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS CO TYPE OF INSURANCE POLICY NUMBER POLICY EFFECTIVE POL EXPIRATIC6 LIMITS LTR DATE(MMIDD/YY) -ATE(MM/DDIYY) GENERAL LIABILITY NERAL AGGREGATE $ 1,000,000 A X COMMERCIAL GENERAL LIABILITY CPP37090-1 12/28/96 12/28/97 P OOUCTS-COMP/OPAGG $ Included � CLAIMS MADE I X1 OCCUR PERSONAL&ADV INJURY $ Included OWNERS&CONTRACTOR'S PROT EACH OCCURRENCE $ 1,000,000 FIRE DAMAGE(Any one fire) $ 50,000 MED EXP(Any one person) $ 5,000 AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT $ ANYAUTO ALL OWNED AUTOS BODILYINJURY $ SCHEDULED AUTOS (Perrperson) HIREDAUTOS BODILY INJURY $ NON-OWNED AUTOS (Per accident) PROPERTY DAMAGE $ I GARAGE LIABILITY AUTO ONLY-EA ACCIDENT $ ANY AUTO OTHER THAN AUTO ONLY EACHACCIDENT $ AGGREGATE S EXCESS LIABILITY EACH OCCURRENCE $ UMBRELLA FORM AGGREGATE I$ OTHER THAN UMBRELLA FORM $ WORKERS COMPENSATION AND WC STATU- OTH- EMPLOYERS'LIABILITY TORY LIMITS ER EL EACH ACCIDENT 5 _ THE PROPRIETOR I INCL EL DISEASE-POLICY LIMIT $ PARTNERSIEXECUTIVE OFFICERS ARE. EXCL EL DISEASE-EA EMPLOYEE $ OTHER DESCRIPTION OF OPERATIONSILOCATIONSNEHICLESISPECIAL ITEMS Certificate holder is named as additional insured as respects to property located at: 292 E. Palm Canyon Drive Palm Springs CA 92264. Ten days written notice of cancellation shall Le given in the event of non-payment of premium. CERTIFICATE HOLDER CANCELLATION PALM009 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF,THE ISSUING COMPANY WILL ENDEAVOR TO MAIL 30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, City of Palm Springs BUT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION OR LIABILITY Encroachment #A3377 Attn: City Clerk OF ANY KIND UPON THE COMPANY,ITS AGENTS OR REPRESENTATIVES, Post Office BOX 2743 AUTHORIZED REPRESENTATIVE es-����,, Palm Springs CA 92263-2743 Harold J. Borak �/ ,� oc.C�f- ACORD 25-5(1/95) OA�RD CORPORATI N 1988