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CITY OF SAN BERNARDINO-REQUEST FOR COUNCIL ACTION
From:
Dept:
James G. Funk, Director
Development Services
ORiGiNAL
Subject: Appeal of the Planning Commission's
approval of Conditional Use Permit No. 04-02 to
construct a 3,220 square foot fast-food restaurant
with a drive-thru at the southwest comer of
Tippecanoe Avenue and Harriman Place in the CR-
3, Commercial Regional-Tri City/Club land use
district.
Date:
May 10, 2004
MCC Date: May 17,2004
Synopsis of Previous Council Action:
On September 15, 2003, the Mayor and Common Council granted the appellant's request for a 30-day
continuance until October 20,2003, at 7:00 pm.
At the Mayor and Common Council Meeting of October 20, 2003, the project applicant (In-N-Out Burgers)
withdrew Conditional Use Permit No. 03-08.
Recommended Motion:
That the hearing be closed, the appeal be denied, and the Planning Commission's approval of Conditional Use
Permit No. 04-02 be upheld, based upon Findings of Fact contained in the Planning Commission Staff Report
dated April 6, 2004, subject to the Conditions of Approval and Standard Requirements. YtltA.WU. ~~
James G. Funk
Contact person: Aron Liang
Phone: 384-5057
Supporting data attached: Staff Report
FUNDING REQUIREMENTS: Amount: N/ A
Ward(s): 3
Source: (Acet. No.)
(Acet. Description)
Finance:
Council Notes:
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Agenda Item No. c;{ '-j
CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
STAFF REPORT
SUBJECT:
APPEAL OF PLANNING COMMISSION APPROVAL OF
CONDITIONAL USE PERMIT NO. 04-02
Mayor and Common Council Meeting of May 17,2004
Appellant:
Frank A. Weiser
3460 Wilshire Boulevard, Suite 903
Los Angeles, CA 90010
(213) 399-7806
Conditional Use Permit Applicant
In-N-Out Burgers
13502 Hamburger Lane
Baldwin Park, CA 91706
(626) 813-8263
BACKGROUND:
Mr. Frank A. Weiser, on behalf of Mr. Vibhakerbhai B. Patel, is appealing the Planning
Commission approval of Conditional Use Permit (CUP) No. 04-02.
CUP No. 04-02 is a request to permit the construction ofa 3,220 square foot fast-food restaurant
with a drive-thru in the HUB project area located at the southwest corner of Tippecanoe
Avenue and Harriman Place in the CR-3, Commercial Regional land use district (Exhibit I).
At their meeting of April 6, 2004, the Planning Commission voted to approve CUP No. 04-02.
The Planning Commission voted 8 to 0 in support ofthe proposal. Commissioners Brown,
Coute, Durr, Enciso, Heasley, Morris, Sauerbrun, and Thrasher voted in favor ofthe motion.
Please refer to the Planning Commission Staff Report, Exhibit 2 for additional discussion.
Ms. Cheryl Houde, a representative for the appellant, was there at the meeting and spoke to
request that an objection letter from the appellant dated April 3, 2004, be made part of the
administrative hearing record (included in Exhibit 2). Mr. William Brinckloe, attorney for In-N-
Out Burgers, submitted a letter acknowledging receipt ofthe correspondence from the appellant
(Exhibit 4) and spoke in reference to the Conditions of Approval concerning indemnifying
issues. Senior Deputy City Attorney Henry Empeilo advised the Planning Commission that he
was familiar with Mr. Brinckloe's comments pertaining to indemnifying issues and
recommended the Planning Commission not made changes to the Conditions of Approval since
the subject matter would be appealed and discussed at the Mayor and Common Council hearing.
Senior Deputy City Attorney Henry Empeilo also submitted a memorandum dated April 6, 2004,
addressing the appellant's April 3, 2004 letter (Exhibit 5).
On April 20, 2004, the appellant filed an appeal to the Mayor and Common Council. The
appellant's grounds for the appeal are that approval of CUP No. 04-02 is unconstitutional in
violation of Appellant's federal and state constitutional rights under the Takings Clause; Due
AP No. 04-02
Hearing Date: 5/17/04
Page 2
Process Clause and Equal Protection Clause and Privileges and Immunities Clause of the federal
and state constitutions.
In accordance with the memorandum dated April 6, 2004, from Mr. Empefto, there has been no
order issued by any court, including the Superior Court and the Court of Appeals in this case
(Inland Valley Development Agency v. Vibhakerbhai B. Patel, et al. San Bernardino Superior
Court Case No. SCVSS 089192, Court of Appeal Case No. E034937), which prevents the City of
San Bernardino from processing and taking action on CUP No. 04-02.
FINANCIAL IMPACT
None. The appellant submitted the appeal fee.
RECOMMENDATION
Staff recommends that the Mayor and Common Council deny the appeal and uphold the
Planning Commission's approval of Conditional Use Permit No. 04-02, based upon Findings of
Fact contained in the Planning Commission Staff Report dated April 6, 2004, subject to the
Conditions of Approval and Standard Requirements.
EXHIBITS:
1 Location Map
2 Application for Appeal No. 04-03
3 Planning Commission Staff Report Dated April 6, 2004
4 Letter from William B. Brinckloe Dated April 6, 2004
5 Memorandum from Senior Deputy City Attorney Henry Empefto Dated April 6,
2004
EXHIBIT 1
CITY OF SAN BERNARDINO PROJECT: CUP No. 04-02
PLANNING DIVISION
LOCATION MAP
LAND USE DISTRICTS HEARING DATE: 4/6/04
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EXHIBIT 2
Application for Appeal
APPEAL FROM A DECISION OF THE (check one)
o Development Services Director;
o DenlopmentlEnvironmental Review Committee; or
I! Planning Commission
Case number(s): Conditional Use permi t No. 04-02
Project address: 1914 S. Tippacanoe Avenue, San Bernardino, CA
Vibhakerbhai B. Patel and Vimalaben V. Patel
Appellant's name:
Appellant's address: 1205 Calimesa Blvd.. Calimesa r CA 92110
Appellant's phone: (90'1) 44F;_A771 _ (Voice); (909) 379-8485 - (Cell)
Contact person's name: Frank A. Weiser, Attorney at Law
C 'dd 3460 Wilshire Blvd., Ste. 903, L.A., CA 90010
ontact person s a ress:
Contact person's phone: (213)384-6964 - (Voi~e); (213)399-7806 - (Cell)
Pursuant to Section 19.52.100 of the Development CoM, an appeal must be filed on a City application fonn
within 15 days following the final date of action, accompanjed by the appropriate appeal filing fee.
Appeals are normally scheduled for a determination by the Planning Commission or Mayor and Common
Council within 30 days of the filing date of the appeal. You will be n.9tified, in writing, of the specific date and
time of the appeal hearing. -
OFFICE USE ONLY
Date appeal filed:
Received by:
"1101
REQUIRED INFORi\1A TION FOR AN APPEAL
I
Specific action being appealed and the date of that action: Apr~l 6, 2004 - The Planni nq
Commi~qinn 'J....il~t:Qg ~onditionFtl n~p Permit No. 02-04 t:n PYl'~nn
and build Tn" R, nll~ J:l'lr'J~r SA Southwp!~t' ~nrnor nr 1'f1; rp.::r.C..R.Se At.e..
and Harriman Place
fi h I The action is unconstitutional in violation
Specific grounds or t e appea :
f A 11 +-. ~...:I 1 ;::Inn at-;:d-Q ~nn!::!t'illt-;l"\n::tl ri'JRts YReJer
o ppP ~n a ~Owgra~ ___ _____
the Takings Clause; Due Process CLause anti Rgll"'1 Drn+-<i/\11;:iQR
Clause and Privileges and Immunities Clause of the federal and
state constitutinn~ t:ronnna -For appe:al Finn ;::Innit-;,....n~l rO:.igoas
are set forth in attached letter of April 3, 2004 sent to Planning Commission
Action sought:
Rescind qrant of CUP No. 02_04 and disallow Inn&Ollt RlITg"T i'-cQRI
building and expanding on Appellants' propertv that was and is s+-;11
beina IjtiqFtt'pn in at-~tQ court of ;::Ippo::tla ~~g NiatR CirQYit
Court of Appeals aqainst IVDA
Additional information: See attached letter of Aoril 3. 2004 ""n+- to
Planning Commission and City Attorney.
... n *,~~\,)ll-N~k ~ ()Q.
Signatureofappellant~ CA. ~- t\.~~e.u.....~
Date:-.Y -.'1 e - C'1
2
511./01
LAW OFFICES
FRANK A. WEISER
LEONARO NASATIR
Of COUNSEL
3460 WILSHIRE BOULEVARD, SUITE 903
LOS ANGELES, CALIFORNIA 90010
TELEPIION Eo ('13) 3..-69'"
FACSIMILE. (11313.3.736.
REFER TO FILE NO.
April 3, 2004
BY TELEFAX AND FEDERAL EXPRESS
City of San Bernardino Planning Commission
City Hall
300 North "D" Street
San Bernardino, CA 92418
(909) 384 -5158
James F. Penman City Attorney
Henry Empeno, Deputy City Attorney
300 North "D" Street
San Bernardino, CA 92418
Facsimile - (909) 384-5238
Re: Inland Valley Development Agency v.
Vibhakerbhai B. Patel, et. al./
Case No. SCVSS 089192/Court of
Appeal Case No. E034937/
Conditional Use Permit No. 04-02
by Inn & Out Burger regarding
southwestcorper of Tippacanoe Ave
and Harriman Place/Planning
Commission Hearinq on 4/06/04
Dear Mr. Penman and Members of the Planning Commission:
I represent Vibhakerbhai and Vimalaben Patel, the
owners of the University Inn Motel formerly located at 1914
S. Tippacanoe Avenue, San Bernardino, California.
As you know, or should know, my clients are'
appealing the Order and Judgment of Condemnation vesting
title of the University Inn Motel property site in favor of
the Inland Valley Development Agency on multiple legal
grounds including that the Superior Court lacked jurisdiction
over the matter. My clients are contesting the Inland Valley
Development Agency's (1IDVA") right to take the property and
thus contest on the same grounds the right of Inn & Out
Burger to obtain a conditional use permit to build on the
property.
City of San Bernardino Planning Commission
James F. Penman City Attorney
Henry Empeno, Deputy City Attorney
Facsimile - (909) 384-5158
Facsimile - (909) 384-5238
Re: Inland Valley Development Agency v.
Vibhakerbhai B. Patel, et. al./
Case No. SCVSS 089192/Court of
Appeal Case No. 8034937/
Conditional Use Permit No. 04-02
by Inn & Out Burger regarding
southwest corner of Tippacanoe Ave
and Harriman Place
April 3, 2004
Page 2
Federal and California case law are quite clear
that once a timely appeal has been filed from a state court
judgment, no res judicata or collateral effect can be given
to the judgment while the appeal is pending. See The San Remo
Hotel v. Citv and Countv of San Francisco, 145 F.3d 1095 (9th
Cir. 1995) (citing California case law to this effect).
Thus, at the very least, Inn & Out Burger's
conditional use permit application is premature.
Nothwithstanding this, Inn & Out Burger made the same
application last year and on appeal to the City Council in
mid-October, after we had completed the superior court trial
and informed the City Council of our intention to appeal to
the 4th District Court of Appeals, Inn & Out Burger withdrew
the application.
We contend that this constitutes a waiver by Inn &
Out Burger of their rights under the former Disposition &
Development Agreement ("DDA"). After the hearing before the
City Council last October, we were informed by the attorney
for Inn & Out Burger that they were no longer obligated to
purchase the Patel property as the DDA had been amended to
reflect the litigation contingencies. If this is so, (and the
council minutes reflect substantially the same representation
by the attorney for Inn & Out Burger) then the IDVA's right
to take would be legally defective as the premise and
reprresentation to the superior court for initiating the
litigation is no longer in effect.
Simply put, the IDVA, City and Inn & OUt Burger
cannot have it both ways. You cannot initiate eminent domain
proceedings on the representation that you had a DDA
obligating Inn & Out Burger to purchase the property and then
amend the DDA to "wait and see" what the ultimate outcome of
the litigation is.
City of San Bernardino Planning Commission
James F. Penman City Attorney
Henry Empeno, Deputy City Attorney
Facsimile - (909) 384-5158
Facsimile - (909) 384-5238
Re: Inland Valley Development Agency v.
Vibhakerbhai B. Patel, et. al./
Case No. SCVSS 089192/Court of
Appeal Case No. E034937/
Conditional Use Permit No. 04-02
by Inn & Out Burger regarding
southwest corner of Tippacanoe Ave
and Harriman Place
April 3, 2004
Page 3
California case law is clear that this nullifies
any previous finding of a public necessity since the road
improvement expansion was only as to a very small part of the
Patel's property and the Patels have all along indicated
their desire to retain the remaining portion of the parcel.
Therefore, this letter shall constitute our formal
objections to Inn & Out Burger's Conditional Use Permit No.
04-02 application on the grounds stated above including the
grounds that the proposed project violates my clients' rights
under the 5th and 14th Amendments of the United States
Constitution and parallel provisions of the California
Constitution which includes, but is not limited. to, the
Takings Clause, Due Process Clause and Equal Protection
Clause.
I shall not be attending the April 6, 2004 Planning
Commission hearing because of the Passover holiday.
Nevertheless, this letter reflects and states our formal
objections to the application and should be placed and made a
part of the administrative record in the event of an appeal
to the City Councilor future federal and state litigation
against the City, IDVA and Inn & Out Burger.
I f you need to speak to me, please contact me at
your convenience on Monday, April 5, 2004 at the above number
or on my cellular at (213) 399-7806.
cc: Vibhakerbhai B. Patel
Vimalaben V. Patel
FAW: aw
Sincerely,
.....~ ~ u..~~
Fra'iiltA. Weiser
Attorney at Law
EXHIBIT 3
SUMMARY
CITY OF SAN BERNARDINO PLANNING DMSION
CASE:
AGENDA ITEM:
HEARING DATE:
WARD:
Conditional Use Permit No.04-02
5
April 6, 2004
3
OWNER
In & Out Burgers
13502 Hamburger Lane
Baldwin Park, CA 91706
626.812.8263
APPLICANT:
MSL Engineering, Inc.
402 W. Arrow Highway, No. H
San Dimas, CA 91706
909.305.2395
REQUEST/LOCATION:
A request for approval of a Conditional Use Permit to construct and operate a 3,220 square
foot fast-food restaurant with a drive-thru in the HUB project area. The proposed project
will be in two phases, with Phase I for construction of the restaurant and Phase II for
demolition of the existing drive-thru restaurant and completion of the remaining on-site
improvements. The project site is located at the southwest comer of Tippecanoe Avenue
and Harriman Place in the CR-3, Commercial Regional land use district.
CONSTRAINTS/OVERLAYS:
Flood Zone X (shaded) and Tri City Corporate Centre Overlay District
ENVIRONMENTAL FINDINGS:
o Not Applicable
Ii:! Previous EIR, the HUB Project
o No Significant Effects
o Potential Effects, Mitigation Measures and Mitigation Monitoring/Reporting Plan
ST AFF RECOMMENDATION:
Ii:! Approval
Ii:! Conditions
o Denial
o Continuance to:
':onditional Use Permit No. 04-02
4/6/04
Page 2
REOUEST AND LOCATION
The applicant requests approval of a Conditional Use Permit under the authority of
Development Code Section 19.06.020, Table 06.01 (D) (4) to construct and operate a 3,220
square foot fast-food restaurant in the HUB project area. The proposed project will be in two
phases, with Phase I for construction of the restaurant and Phase II for demolition of the
existing drive-thru restaurant and completion of the remaining on-site improvements. The
project site is located at the southwest corner of Tippecanoe Avenue and Harriman Place in
the CR-3, Commercial Regional land use district (Attachment A).
The site has been designed with a fast food restaurant fronting Harriman Place with parking
immediately to the south of the building and landscaping located through out the project
premises. The layout includes an outdoor seating area and the drive-tbm aisle extending
along the easterly property boundary and around the restaurant with the entrance area
approximately 170 feet on the south side and the pick up window on the north side. Vehicular
access to the site will be on Harriman Place (Attachment B).
Operational Characteristics
The proposed business hours for walk-in will be from 10:30 am to midnight and the drive-thru
service will be from 10:30 am to 2:00 am, seven days per week. The proposed project
anticipates the creation of about 50 jobs.
SETTING/SITE CHARACTERISTICS
The property site is irregular in shape and consists of approximately 1.07-acres. Surrounding
the project site to the north is a vacant lot in the_ CR-3, Commercial Regional land use district.
To the west, south and adjacent to the site is the'Jiew Sam's Club, which is under
construction. To the south is the Interstate Freeway lOon-ramp. To the east and across
Tippecanoe Avenue are commercial activities in the CG-I, Commercial General land use
district.
BACKGROUND
Conditional Use Permit (CUP) No. 04-02 is a resubmittal application of Conditional Use
Permit No. 03-08. The Planning Commission approved CUP No. 03-08 on June 3, 2003.
However, on June 18,2003, an appeal to the Planning Commission's decision was filed. This
appeal made it necessary for CUP No. 03-08 to be considered by the Mayor and Common
Council (MCC). At the MCC Meeting of October 20, 2003, the project applicant withdrew
CUP No. 03-08. This resulted in immediate cancellation of CUP No. 03-08. Pursuant to
Development Code Section 19.06 (2) (I), the project applicant filed a new CUP. No project
layout changes are proposed as a part of CUP No. 04-02.
The Development/Environmental Review Committee (D/EDRC) first heard CUP No. 04-02
on February 5, 2004 and moved the project to Planning Commission.
':onditional Use Permit No. 04-02
4/6104
Page 3
FINDINGS AND ANALYSIS
1. Is the proposed use conditionally permitted within the subject land use district,
would it impair the integrity and character of the subject land use district, and
does it comply with all of the applicable provisions of this Development Code?
Yes, pursuant to Development Code Section 19.06.020 Table 06.01 (2)(1), fast-food
restaurants with drive-thrus are permitted in the CR-3, Commercial Regional land use
district, subject to the approval of a Conditional Use Permit. The proposed project
complies with all applicable provisions of the Development Code as shown below in
Table "A".
TABI E "A" - DEVELOPMENT CODE AND GENERAl PI AN CONFORMANCE
. . .
CATEGORY PROPOSAL DEVELOPMENT GENERAL PLAN
CODE
Permitted Use Fast-food Restaurant Permitted subject to N/A
witb a Drive-tbm Conditional Use Pennit
Heigbt 1 story - 26 feet 2 stories or 30 feet 2 stories or 30 feet
Setbacks
- Front 26 feet 10 feet N/A
- Side (street) 26 feet 10 feet
Side (interior) N/ A feet , o feet
-
- Rear 174 feet o feet
- Drive-tbm Aisle 26 feet 25 feet
Landscaping 11,175 square feet '7,000 square feet N/A
(24%) (15%)
Lot Coverage 6 percent 50 percent N/A
Parking 43 spaces 33 spaces N/A
- Standard 41 31
- Handicap 2 1
Drive-tbm 11 car stacking 6 car stacking N/A
~ollditional Use Permit No. 04-02
4/6/04
Page 4
2. Is the proposed use consistent with the General Plan?
Yes, the proposal is consistent with the General Plan goals, objectives and policies as
follows:
General Plan GoallB states: "Provide employment opportunities for existing and
future residents of the City and those of adjacent communities"
The proposed project will provide employment and retail service opportunities for
local residents and the surrounding community.
General Plan Policy 1.17.30 states: "Continue and expand the Tri-City/Commercenter
and Club areas as region-serving mixed use centers; capitalizing on their location
along the Interstate 10 corridor, and establishing a well-defined linkage to the City's
major commercial and industrial districts and residential neighborhoods".
The project has been designed and conditioned to ensure compatibility
with adjacent commercial and to minimize traffic safety concerns.
3. Is the approval of the Conditional Use Permit for the proposed use in
compliance with the requirements of the California Environmental Quality Act
and Section 19.20.030(6) of the Development Code?
Yes, the EIR prepared for the HUB project addressed the relocation of In-N-Out
Burgers to this site. The applicable mitigation measures are carried over for this
project. The EIR mitigation measures mitigate and address traffic and circulation
issues.
4. Are there potentially significant negative impacts upon environmental quality
and natural resources that could not be properly mitigated and monitored?
The EIR identified certain environmental categories (transportation and circulation, air
quality, noise and, cultural resources) for potential significant adverse impacts
including cumulative impacts. Both project-specific and cumulative impacts were
evaluated in the EIR. The City found that these issues and sub issues as discussed in
the conclusions in the EIR can be mitigated below a level of significant and for those
issues which cannot be mitigated, the MCC adopted Findings of Fact and a Statement
of Overriding Considerations.
':ollditional Use Permit No. 04-02
4/6104
Page 5
5. Are the location. size. design. and operating characteristics of the proposed
use compatible with the existing and future land uses within the general area
in which the proposed use is to be located and will it create significant noise.
traffic or other conditions or situations that may be objectionable or
detrimental to other permitted uses in the vicinity or adverse to the public
interest. health. safety. convenience. or welfare of the City?
The proposed project is compatible with the area and will be a complementary
land use to the surrounding retail commercial activities. The proposal is a
community-serving retail facility, which will attract people from within the
City and the surrounding area. Since the proposed project is consistent with
the General Plan and Development Code, no land use conflict or
environmental adverse impacts will result from the construction and operation
of the proposed project.
Site Desilln
The proposed layout complies with Development Code Section 19.06(2)(1)
development standards for drive-thru restaurants. These standards include but
not limited to: 1) 6-car stacking behind the menu board, 2) construct the drive-
thru aisles with (PCC) concrete, 3) provide drive-thru aisles with 12-foot width
on curves and II-foot width on straight sections and 4) drive-thru aisles, and
structure are set back 25 feet from ultimate curb face.
The proposed fast-food restaurant has been designed to comply with the new
Sam's Club for architectural theme elements, materials and colors. The
architectural elements include ledge stone veneer, trellis, awnings, arches &
projections, columns, and other decorative features for the restaurant building.
The finish materials and colors will compliment those of the Sam's Club
building.
Access
Vehicular access to the project site will share the driveways to the new Sam's
Club shopping center. There will be three major entrances to the new Sam's
Club site on Harriman Place. The extension of Harriman Place through the
HUB project site is currently under construction. All new cuts for driveways,
curbs and gutters as a part of Harriman Place street improvements and
extension will be in place in time to accommodate this proposal.
Parkinll and Stackinll
The Development Code Section 19.24.040 requires 32 parking spaces for this project.
The proposal provides overflow of parking stalls with 41 standard and 2 handicap for
. a total of 43 stalls. The Development Code requires 6-car stacking behind the menu
order board. This project provides stacking for II vehicles while proving adequate
on-site parking and circulation.
~onditional Use Permit No. 04-02
4/6/04
Page 6
Landscapin~
The proposed landscaping of24% on site exceeds the Development Code
requirements.
6. Is the subject site physically suitable for the type and density/intensity of use
being proposed?
Yes, the site is physically suitable for the type and density/intensity of the project
being proposed as evidenced by project compliance with all applicable Development
Code Standards for lot coverage, height limitation, setbacks, landscaping and parking
requirements as discussed and illustrated in Table "An.
7. Are there adequate provisions for public access, water, sanitation, and public
utilities and services to ensure that the proposed use would not be detrimental
to public health and safety?
Yes, all agencies responsible for reviewing access, and providing water, sanitation and
other public services have all had the opportunity to review the proposal, and none
have indicated an inability to serve the project. The proposal will not be detrimental
to the public health and safety in that all applicable Codes will apply to the
construction of this project.
CONCLUSION
The proposal meets all necessary Findings ofF-act for approval of the Conditional Use Permit.
RECOMMENDATION
Staff recommends that the Planning Commission approve Conditional Use Permit No. 04-02
based upon the Findings of Fact contained in this Staff Report and subject to the Conditions
of Approval (Attachment C) and Standard Requirements (Attachment D).
Respectfully Submitted,
~U.~tJV\JP'
James G. Funk 0
Director of Development Services
~
Senior Planner
Attachment A
Attachment B
Attachment C
Attachment D
Location Map
Site Plan, Floor Plan and Elevations
Conditions of Approval
Standard Requirements
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ATTACHMENTC
CONDITIONS OF APPROY AL
CONDITIONAL USE PERMIT NO. 04-02
I. This approval is for construction of a 3,220 square foot fast-food restaurant with a
drive-thru in the HUB project area. The project site is located at the southwest
corner of Tippecanoe Avenue and Harriman Place in the CR-3, Commercial
Regional district.
2. Within two years of development approval, commencement of construction shall
have occurred or the permit/approval shall become null and void. In addition, if
after commencement of construction, work is discontinued for a period of one
year, then the permit/approval shall become null and void. However, approval of
this application does not authorize commencement of construction. All necessary
permits must be obtained prior to commencement of specified construction
activities included in the Conditions of Approval and Standard Requirements.
Expiration Date: April 6, 2006
3. The review authority may grant a one-time extension not to exceed 12 months.
The applicant must file an application, the processing fees, and all required
submittal items, 30 days prior to the expiration date. The review authority shall
ensure that the project complies with all current Development Code provisions.
4. In the event this approval is legally challenged, the City will promptly notify the
applicant of any claim, action or procecaing and will cooperate fully in the
defense of this matter. Once notified, the applicant agrees to defend, indemnify
and hold harmless the City of San Bernardino (City), the Economic Development
Agency of the City of San Bernardino (EDA), any departments, agencies,
divisions, boards or commission of either the City or EDA as well as
predecessors, successors, assigns, agents, directors, elected officials, officers,
employees, representatives and attorneys of either the City or EDA from any
claim, action or proceeding against any of the foregoing persons or entities. Tbe
applicant further agrees to reimburse the City of any costs and attorneys' fees
which the City may be required by a court to pay as a result of such action, but
such participation shall not relieve applicant of his or her obligation under this
condition.
The costs, salaries, and expenses of the City Attorney and employees of
his office shall be considered as "attorneys fees" for the purpose of this
condition.
. As part of the consideration for issuing this permit, this condition shall remain in
effect if this Conditional Use Permit is rescinded or revoked, whether or not at the
request of applicant.
S. Construction shall be in substantial conformance with the plan(s) approved by the
Director, Development Review Committee, Planning Commission or Mayor and
Common Council. Minor modification to the plan(s) shall be subject to approval
by the Director through a minor modification permit process. Any modification
which exceeds 10% of the following allowable measurable design/site
considerations shall require the refiling of the original application and a
subsequent hearing by the appropriate hearing review authority if applicable:
a. On-site circulation and parking, loading and landscaping;
b. Placement andlor height of walls, fences and structures;
c. Reconfiguration of architectural features, including colors, andlor modification
of finished materials that do not alter or compromise the previously approved
theme; and,
d. A reduction in density or intensity of a development project.
6. No vacant, relocated, altered, repaired or hereafter erected structure shall be
occupied or no change of use ofland or structure(s) shall be inaugurated, or no
new business commenced as authorized by this permit until a Certificate of
Occupancy has been issued by the Department. A temporary Certificate of
Occupancy may be issued by the Department subject to the conditions imposed on
the use, provided that a deposit is filed with the Department of Public Works prior
to the issuance of the Certificate, if necessary. The deposit or security shall
guarantee the faithful performancel!Ild completion of all terms, conditions and
performance standards imposed on the intended use by this permit.
7. This permit or approval is subject to all the applicable provisions of the
Development Code in effect at the time of approval. This includes Chapter 19.20
- Property Development Standards, and includes: dust and dirt control during
construction and grading activities; emission control of fumes, vapors, gases and
other forms of air pollution; glare control; exterior lighting design and control;
noise control; odor control; screening; signs, off-street parking and off-street
loading; and, vibration control. Screening and sign regulations compliance is
important considerations to the developer because they will delay the issuance of
a Certificate of Occupancy until they are complied with. Any exterior structural
equipment, or utility transformers, boxes, ducts or meter cabinets shall be
architecturally screened by wall or structural element, blending with the building
design and include landscaping when on the ground.
8. Signs are not approved .as a part of this permit. Prior to establishing any new
signs, or replacing existing signs, the applicant shall submit an application, and
receive approval, for a sign permit from the Planning Department.
9. The speaker boxes shall be maintained so that no noise level shall be audible
beyond the property line.
10. Signslbanners may not be placed on or over the roof or within landscaped areas.
II. The applicant shall be responsible for posting signs prohibiting litter and loitering.
Management shall be responsible for enforcing this provision.
12. All graffiti shall be removed within 24 hours of its occurrence. The management
shall take a photograph of the graffiti and provide to the Police Department before
removing.
13. If pay phones are installed, they shall be placed within the building and setup for
outgoing calls only, with no incoming calls allowed.
14. All shrubs, berms, and hedgerow provided along the drive-thru lane area shall be
at a minimum of 3 feet tall to mitigate and screen the headlights.
15. (*) Within 60 days after completion of the In-N-Out building (new), the project
applicant shall demolish the existing In-N-Out building (old) and construct the
necessary improvements as shown on the approved "Ultimate Site Plan".
16. The landscape plans for groundcovers shall be installed with sod (no hydro seed)
or combination with plant materials to match the Sam's Club. No shredded
redwood bark or other similar type shall be used for ground covers.
17. This permit or approval is subject 10 the attached conditions or requirements of
the following City Departments or Divisions:
a. Plan Check Division
b. Public Works
c. Fire Department
d. Water Department
e. Public Services Department
f. Parks, Recreation & Community Services
(*) Added by the Planning Commission on April 6, 2004.
A IT ACHMENT "0"
,\!',,-
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.-.;~,pI.. ~..
San Bernar too
City of San Bernardino
STANDARD REQUIREMENTS
Development Services/Plan Check Dh.ision
~
Property address:. Lu P04-O z..
DATE: 2-/~~4-
1. Submit 6 sets of plans, minimum size 18" x 24", drawn to scale. If plan check is for
expeditious review, submit 6 sets. The plans shall include (if applicable):
a. site plan (Include address & assessors parcel number)
b. foundation plan
c. Door plan (label use of all areas)
d. elevations
e. electrical, mechanical, & plumbing plans
f. detail sheets (structural)
g. cross section details
h. show compliance with Title 24/Accessibility (disabled access)
i. a plan check deposit fee will be required upon submittal of plans.
Call Denlopment Services (plan check) 909-384-5071 for amount.
2.
The title sheet of the plans must specify the occupancy classification, type of constructioR.lf
the building has sprinklers, & the current applicable codes.
3. The person who prepares them must sign the plans. Also, pro,.ide the address & pbone
number of that person. Some t}'pes of occupancies require that the plans are prepared.
stamped. and signed b}' an architect, engineer, or other person licensed by the State of
California.
4. For structures that must include an engineers design, provide 2 sets of stamped/wet signed
calculations prepared by a licensed architect/engineer.
5. Provide 2 sets of Title 24/Energy compliance forms and calculations. Some compliance
forms are required to be printed on the plans.
6. Submit grading, site, and/or landscape plans to Public Works/Engineering for plan cbeck
approval and permits. For more information, phone 909-384-5111.
7. Fire sprinkler plans, fires suppression system plans, etc., shall be submitted to the FIre
Department for plan check appronl and permits. For information. phone 909-384-5388.
8. Signs require a separate submittal to the Planning Division for plan check approval and
permits. For information, phone 909-384-5057.
9. Restaurants, food preparation facilities. and some health relaled occupancies will require
clearances and apprond plans from San Bernardino County Health Department. For
information, phone 909-387-3043.
10. Occupancies that include restaurants. car washes. automotive repair/auto body. dentist
offices. food preparation facilities or processing plants. etc. may require approvals and
permits from San Bernardino Water Reclamation. For information. phone 909-384-5141.
11. An air quality permit ma~' be required. Contact South Coast Air Qualit~' Management
Division for information. phone 909-396-2000.
12. State of California Business & Professions Code/Contractors License Law requires that
permits can be issued to licensed contractors or owner-builders (that are doing the work).
Contractors must pro\'ide their State license number, a city business registration, and
workers compensation policy carrier & polic~' number. Owner-builders must provide
proof of ownership.
~OT[: PLAN CHECK TIME ON THESE TYPES OF PROJECTS IS APPROXIMA TEL Y 4-6
WEEKS FOR 1 ST CORRECTIONS. EXPEDITIOUS REVIEW IS APPROXIMA TEL Y 10 WORKING
DA'iS. THE DEVELOPMENT REVIEW PROCESS IS NOT THE BUILDING PLAN CHECK AND
DOES NOT IMPL Y THAT THE DESIGN AS SUBMITTED WILL BE APPROVED WITHOUT
CORRECTIONS.
Comments: fL-IrN0
'. fl-.I,I/ t_H(.:.J/k.
FRo/Ii t;,i/P /()f'
WtL-1- /./OT 8~ /1t:(:,t:;.PTt::. [) Fel<....
vJ,TI-1 Ci.lT '--'.7//;/ /T/CI.15 CF /'1,cl'/<'OV/I L
g.c./1.l6 . ';.11t=R..!/;/n:.-1) 0/./ R,!;/1.5
300 N '0' Street San Bernardino CA 91418
909-384-5071 Office
909.384-5080 Fax
STANDARD REQUIREMENTS
DEPARTMENT OF DEVELOPMENT SERVICES/PUBLIC WORKS DIVISION
I DESCRIPTION: Construct a 3,220 S.F.
CASE NO: C.U.P.04.Q2
Restaurant for IN.N.QUT Burger
APPLICANT: LOCATION: Southwest Harriman/Tippecanoe
MSL Engineering, Inc.
. NOTE TO APPLICANT: Whel'll separate Engineering plans ai'll I'llquil'lld, the appHclllt Is
I'llsponsible for submitting the Engineering plans directly to the Engineering Division. They
may be submitted prior to submittal of Building Plans.
1. Drainage and Flood Control
a) The development is located within Zone X (shaded) on the Federal
Insurance Rate Maps and may be subject to sheet overflow to a depth of
less than 1 foot in a 100 year storm; therefore all building pads shall be
raised above the surrounding area as approved by the City Engineer.
b) All drainage from the development shall be directed to an approved public
drainage facility. If not feasible, proper drainage facilities and easements
shall be provided to the satisfijction of the City Engineer.
c) If site drainage is to be outletted into the public street, the drainage shall
be conveyed through a parkway culvert constructed in accordance with
City Standard No. 400. Conveyance of site drainage over the Driveway
approaches will not be permitted.
d) Applicant shall mitigate on-site storm water discharge sufficiently to
maintain compliance with the City's NPDES Storm Water Discharge
Permit Requirements. A "Notice of Intent (NOI)" shall be filed with the
State Water Quality Control Board for construction disturbing 1 acre of
more of land.
Page 1 of 1 0 Pages
2/1712004
STANDARD REQUIREMENTS
DEPARTMENT OF DEVELOPMENT SERVICES/PUBLIC WORKS DIVISION
CASE NO: C.U.P.04-02 DESCRIPTION: Construct a 3,220 S.F.
Restaurant for IN-N.QUT Burger
APPLICANT: LOCATION: Southwest HarrimanlTippecanoe
MSL Engineering, Inc.
e) The City Engineer, prior to grading plan approval, shall approve an
Erosion Control Plan. The plan shall be designed to control erosion due
to water and wind, including blowing dust, during all phases of
construction, including graded areas which are not proposed to be
immediately built upon.
2. Grading and Landscaping
a)
If more than l' of fill or 2' of cut is proposed, the site/plot/grading and
drainage plan shall be signed by a Registered Civil Engineer and a
grading permit will be required. The grading plan shall be prepared in
strict accordance with the City's "Grading Policies and Procedures. and
the City's "Standard Drawings", unless otherwise approved by the City
Engineer.
:f~_::-
b) If more than 1,000 cubic yards of earth is to be hauled on City Streets
then a special hauling permit shall be obtained from the City Engineer.
Additional conditions, such as truck route approval, traffic controls.
bonding, covering of loads, street cleaning, etc. may be required by the
City Engineer.
c) A liquefaction evaluation is required for the site. This evaluation must be
submitted and approved prior to issuance of a grading permit. Any
grading requirements recommended by the approved liquefaction
evaluation shall be incorporated in the grading plan.
d) An on-site Improyement Plan is required for this project. Where feasible,
this plan shall be incorporated with the grading plan and shall conform to
all requirements of Section 15.04-167 of the Municipal Code (See
"Grading Policies and Procedures").
Page 2 of 1 0 Pages
2/17/2004
STANDARD REQUIREMENTS
DEPARTMENT OF DEVELOPMENT SERVICES/PUBLIC WORKS DIVISION
CASE NO: C.U.P.04-o2 DESCRIPTION: Construct a 3,220 S.F.
Restaurant for IN-N-OUT Burger
APPLICANT: LOCATION: Southwest HarrimanfTippecanoe
MSL Engineering, Inc.
e) A refuse enclosure constructed in accordance with City Standard Drawing
No. 508. The minimum size of the refuse enclosure shall be 8 feet x 15
feet, unless the Public Services Department, Refuse Division, approves a
smaller size, in writing.
f) Retaining walls, block walls and all on-site fencing shall be designed and
detailed on the On-site Improvement Plan. This work shall be part of the
On-site Improvement permit issued by the City Engineer.
g) The Drive-through lane and the parking area adjacent to the building shall
be constructed of PCC concrete pavement.
j>:.
.~~~:~
h) The on-site improvement plan shall include details of on-site lighting,
including light location, tYPElof poles and fixtures, foundation design,
conduit location and size, and- the number and size of conductors.
Photometry calculations shall be provided which show that the proposed
on-site lighting design will provide 1 foot-candle of illumination uniformly
distributed over the surface of the parking lot during hours of operation
and 0.25 foot-candles security lighting during all other hours.
i) The design of on-site improvements shall also comply with all
requirements of The California Building Code, Title 24, relating to
handicap parking and accessibility, including retrofitting of existing
building access points for handicap accessibility, if applicable.
j) A handicap accessible path of travel shall be provided from the public way
to the building en\rance. All pathways shall be concrete paved and shall
provide a minimum clear width of 4 feet. Where parking overhangs the
pathway, the minimum paved width shall be 6 feet.
Page 3 of 10 Pages
2/17/2004
STANDARD REQUIREMENTS
DEPARTMENT OF DEVELOPMENT SERVICES/PUBLIC WORKS DIVISION
CASE NO: C.U.P. 04..()2 DESCRIPTION: Construct a 3,220 S.F.
Restaurant for IN-N.oUT Burger
APPLICANT: LOCATION: Southwest Harriman/Tippecanoe
MSL Engineering, Inc.
k) Where the handicap accessible path of travel crosses drive aisles. it shall
be delineated by striping or textured/colored concrete pavement.
I) A reciprocal easement shall be recorded prior to grading plan approval if
reciprocal drainage, access, sewer, and/or parking is proposed to cross
lot lines, or a lot merger shall be recorded to remove the interior lot lines.
m) The project Landscape Plan shall be reviewed and approved by the City
Engineer prior to issuance of a grading permit. Submit 5 copies to the
Engineering Division for Checking.
n) The public right-of-way, between the property line and top of curb (also
known as "parkway") along acjjoining streets shall be landscaped by the
developer and maintained in perpetuity by the property owner. Details of
the parkway landscaping shall be included in the project's on-site
landscape plan, unless the parkway area is included in a landscape
maintenance district, in which case, a separate landscape plan shall be
provided.
0)
A Landscape Maintenance District shall
landscaping within the following areas:
Laurelwood Avenue.
be implemented to maintain
Tippecanoe Avenue and
p) All required maintenance districts shall be formed prior to issuance of
grading permit.
q) Separate sets of 'landscape Plans shall be provided for the Landscape
Maintenance District.
Page 4 of 10 Pages
2/17/2004
STANDARD REQUIREMENTS
DEPARTMENT OF DEVELOPMENT SERVICESIPUBLlC WORKS DIVISION
CASE NO: C.U.P. 04-02 DESCRIPTION: Construct a 3,220 S.F.
Restaurant for IN-N.QUT Burger
APPLICANT: LOCATION: Southwest HarrimanlTippecanoe
MSL Engineering, Inc.
r) An easement and covenant shall be executed on behalf of the City to
allow the City to enter and maintain any required landscaping in case of
owner neglect. The Real Property Section for execution by the property
owner and shall ensure that, if the property owner or subsequent owner(s)
fail to property maintain the landscaping, the City will be able to file
appropriate liens against the property in order to accomplish the required
landscape maintenance. A document processing fee in the amount of
$200.00 shall be paid to the Real Property Section to cover processing
costs. The property owner, prior to plan approval, shall execute this
easement and covenant unless otherwise allowed by the City Engineer.
3. Utilities
a) Design and construct all public utilities to serve the site in accordance with
City Code, City Standards" and requirements of the serving utHity,
including gas. electric, telephone, water. sewer and cable TV (Cable TV
optional for commercial, industrial. or institutional uses).
b) Sewer main extensions required to 'serve the site shall be constructed at
the Developer'S expense.
c) This project is located in the sewer service area maintained by the City of
San Bernardino therefore, any necessary sewer main extension shall be
designed and constructed in accordance with the City's "Sewer Policy and
Procedures. and City Standard Drawings.
d) Utility services shall be placed underground and easements provided as
required.
Page 5 of 10 Pages
2/17/2004
STANDARD REQUIREMENTS
DEPARTMENT OF DEVELOPMENT SERVICES/PUBLIC WORKS DIVISION
CASE NO: C.U.P.04.Q2 DESCRIPTION: Construct a 3,220 S.F.
Restaurant for IN.N.QUT Burger
APPLICANT: LOCATION: Southwest HarrimanlTippecanoe
MSL Engineering, Inc.
e) A street cut permit, from the City Engineer. will be required for utility cuts
into existing streets where the street is not being repaved as part of the
required improvements. .
f) All existing overhead utilities adjacent to or traversing the site on either
side of the street shall be undergrounded in accordance with Section
19.20.030 (non-subdivisions).
g)
Existing Utilities which interfere with new construction shall be relocated at
the Developers expense as directed by the City Engineer, except
overhead lines, if required by provisions of the Development Code to be
undergrounded. See Development Code Section 19.20.030 (non-
subdivisions ).
,",. _.-.
h) Sewers within private streets orprivate parking lots will not be maintained
by the City but shall be designed and constructed to City Standards and
inspected under a City On-Site Construction Permit. A private sewer plan
designed by the Developers Engineer and approved by the City Engineer
will be required. This plan can be incorporated in the grading plan. where
practical.
Page 6 o( 10 Pages
2/1712004
STANDARD REQUIREMENTS
DEPARTMENT OF DEVELOPMENT SERVICES/PUBLIC WORKS DIVISION
CASE NO: C.U.P.04-02 DESCRIPTION: Construct a 3,220 S.F.
Restaurant for IN-N.QUT Burger
APPLICANT: LOCATION: Southwest HarrimanlTippecanoe
MSL Engineering, Inc.
4. Street Improvement and Dedications
a)
All public streets within and adjacent to the development shan be
improved to include combination curb and gutter, paving, handicap ramps,
street lights, sidewalks and appurtenances, including, but not limited to
traffic signals, traffic signal modifications, relocation of public or private
facilities which interfere with new construction, striping, shall be
accomplished in accordance with the City of San Bernardino .Street
Improvement Policy" and City "Standard Drawings", unless otherwise
approved by the City Engineer. Street lighting. when required, shall be
designed and constructed in accordance with the City's "Street Lighting
Policies and Procedures". Street lighting shall be shown on street
improvement plans except where otherwise approved by the City
Engineer.
:~.;"~'
b) For the streets listed below, dedication of adequate street right-of way
(RW.) to provide the distance frQm street centerline to property line and
placement of the curb line(C.L.) in relation to the street centerline shall be
as follows:
Street Name Right of WaY(!!J Curb Linem!
*TIPPECANOE AVENUE 65' - 60'* *SEE COMMENTS
LAURELWOOD AVENUE *SEE COMMENTS *SEE COMMENTS
*SEE APPROVED/FILED IMPROVEMENT PLAN NO. 10373
Page 70f10 Pages
2/1712004
STANDARD REQUIREMENTS
DEPARTMENT OF DEVELOPMENT SERVICES/PUBLIC WORKS DIVISION
CASE NO: C.U.P. 04-02 DESCRIPTION: Construct a 3,220 S.F.
Restaurant for IN-N-OUT Burger
APPLICANT: LOCATION: Southwest HarrimanlTippecanoe
MSL Engineering, Inc. I
c} Construct 8" Curb and Gutter per City Standard No. 200 adjacent to the
site. Widen pavement adjacent to the site to match new curb and gutter.
Construct approach and departure transitions for traffic safety and
drainage as approved by the City Engineer.
d} Construct sidewalk adjacent to the site in accordance with City Standard
No. 202. Case "A" (6' wide adjacent to curb).
e} Construct Handicap Ramps in accordance with City Standard No. 205 at
all curb returns within and adjacent to the project site. Dedicate sufficient
right-of-way at the corner to accommodate the ramp.
..$'!Il'
,.~ ."
f}
Construct Driveway Approaches per City Standard No. 204, Type II,
including Handicap by-pass. "Remove existing driveway approaches that
are not part of the approved plan and replace with full height curb & gutter
and sidewalk.
g} Curb returns at the intersection of two arterial streets shall be 35 feet
unless otherwise approved by the City Engineer.
h} Install Street lights adjacent to the site in accordance with City Standard
Nos. SL-1 and SL-2.
5. Required Engineering Permits
a} Grading permit (If applicable.).
b) On-site improvements construction permit (except bu~dings - see
Development Services-Building Division), including landscaping.
Page 8 of I 0 Pages
2/1712004
STANDARD REQUIREMENTS
DEPARTMENT OF DEVELOPMENT SERVICES/PUBLIC WORKS DIVISION
CASE NO: C.U.P.04'()2 DESCRIPTION: Construct a 3,220 S.F.
Restaurant for IN-N-CUT Burger
APPLICANT: LOCATION: Southwest Harriman/Tippecanoe
MSL Engineering, Inc.
c) Off-site improvements construction permit.
6. Applicable Engineering Fees!
a) Plan check and inspection fees for off-site improvements - 4% and 4%,
respectively, of the estimated construction cost2 of the off-site
improvements.
b) Plan check and inspection fees for on-site improvements (except buildings
_ See Development Services-Building Division) - 2% and 3%, respectively,
of the estimated construction cost3 of the on-site improvements, including
landscaping.
c) Plan check and inspection fees for grading (If permit required) - Fee
Schedule available at the Engineering Division Counter.
I All Fees are subject to change without notice.
2Estimated ConstrucUon Cost for Off-Site Improvements ;s based on a list of standard unit prices on Ifle wflll
the Public Worlcs Division.
3 Estimated Construction Cost for On-Site Improvements is based on a list of standard unit prices on /fie
. with the Public Worlcs Division.
Page 90flO Pages .
2/17/2004
STANDARD REQUIREMENTS
DEPARTMENT OF DEVELOPMENT SERVICES/PUBLIC WORKS DIVISION
CASE NO: C.U.P.04.o2 DESCRIPTION: Construct a 3,220 S.F.
Restaurant for IN-N.QUT Burger
APPLICANT: LOCATION: Southwest HarrlmanlTippecanoe
MSL Engineering, Inc.
d) Drainage fee in the approximate amount as follows based on $0.4614 per
square foot for the first 3,000 square feet of impervious lot area (estimated
as 85% of the net lot area), then $0.1582 per square foot of remaining
impervious lot area or fraction thereof: $3,776.50
e) Traffic system fee in the estimated amount of $29,406.40. Basep on
1,598 trips per day @ $18.402 per new trip generated by the project.
The City Traffic Engineer shall determine exact amount at time of
application for Building Permit.
f)
Sewer Connection fee in the approximate amount as follows based on
$261.31 per 3,000 square feet or fraction thereof: $522.62
-'~~_...
g) Sewer inspection fee in the estimated amount as follows based on $22.03
per connection: $22.03-
h) Street or easement dedication processing fees in the amount of $ 200.00
per document.
Page 100f10 Pages
2/1712004
CITY OF SAN BERNARDINO FIRE DEPARTMENT
STANDARD REQUIREMENTS
~\I'/ -r;pp"",- 4,JQ-€/1L~M.Ni
GENERAL REQUIREMENTS:
~ P_ one _Ill" canotruCtion pia... Ie Bu~ and Sa'otv Icr Fire Oopartment.... at ti!M 0' plan CIleI:k.
CanlIet tho cay.. SIn _ Fn Cop3l1Inenl 1/ i3091 :M.Sses lor OFeCilie _ ~lir.m""'
The... Ilaper....~ tor edequatelirw flow MinmUf'!'l tire n.,w requlremenll shd be bliNd on squire foe1age. construction IulUres, Ind aIpOIUN
_ion II4lIIlied by IIlI ....lloplr IIId I!!!!!! III '.Il'ab"" a!!2!: 10 pllIOng combust_ ..- on "'Ie.
Case:~
Dale:~-
Reviewed By: G~ I? J
.
WATER PURVEYOR FOR FIRE PROTECTION:
IQ TIIo ... pr-" - . _ _ lot.. _ ..... prajact is ~'ovlded b'{
"7\ B San......~uIoll.N:ipllW_Dopa_l-Engi_ng ,~0913&C-5J9'
EIII VIIIy W_ ~ngInMring (901) 881-8966
o OO.W.........,.." Pnor..:
PUBUC FIRE PROTECTION FAClUTlES:
~ _.....,...........-Ilang _ II int8rtaJa not to ..011<I 300.... lor _ and muli-residlnlill._1IId II __ nallo_
500......11 .. 61-.
r"I Fft..,.... _ _ _.. 1.500 \IPIlIII. 20 pai.m_ ...- _lUll... ~_ for eornmon:iaIl11d _....4.1liII...... __...
l'" ..,.... __ ..l,ClllO\IPIlIlla20paI_ _ _u..... ~lor _......
I<>' Fn..,.... \WII-....... _ _Ill jainIIy _by tho cay .. San IIemaIdino ,.... Dep.rlmInt in carjunclian _ tilt _ _. .....
>'I "'*"" m_ _ ~ " . . , _ _ Ill... _RII and 11'1 ....A...... IIlI _, purveyor. .
10' _1iII..,.......... _. and..-..... '- _sary to __ Fi.. Dopa_ .....omenls... tho dovolaplr'l ftnaneiaI-."" . -. _
..,.. _Ill_by........ PU"''''' Of by tho dovoloplr at ... wale' p.owyo(. disc"""'" Contact tho wale, _ _ _ far . r<t. .."
illamalion.
ACCESS:
B ~..... --. -- -.. ingruoIegNIa to"'~ 1'llIanCI. TIIo....... _ III pavld." __.
~ an __ _ III _1lulIdIng lor In _ra..... Ace_ -v .hll tiaYl an .......IIlIr driving IU~ICI .. noIleu INn 20 .... 01_
--
o ~ ~ III - ISO _ .. .. pIlI1icnI" IIlI ........ _ oIaI aingIt s:orv buiidIngo.
o E_ ~1lI _ SO""" IIlI '*""'..... II m"llp"'-..y-.g..
</KP ~,:::~~ =~~;:.,~. - 110I- -.:.Iht Mtorane. of '''''''5' roallwaY5 to I... tIlan tho roquiftd _. SigN
, . "0 o.d-end "'-IS"" noI eICIId 500.... in -11th and shall "'eve a mir'ln'lum.O 'Nt 'adi':s t:.m...r;~'.,1't
o TIIo -.. ,",'" - u..- Of privaltl_ bt lubm_ to lno Fo,. ~'Io' oppro<a'.
SITE:
'll( M_ __._a..lobt___ priorlO_Ite<nst",::tfOf1.
!f _lire IIydrtnla _11I_10 pnIler:loaeh ~ Ioeattd mOfIlIwn ':;0 ,... trom ,.,. CUll> ,in. !'lo lire hydrants.houId bt _ 40...... Illy
- ..... TIIo IlydIwa thai be Wtl_ typo. _ one Z\OIneII _4 ineII ""'''''- .ne: 'PJ'",..'d by I" Fira Oopallmtnt. Af_"'- Ill..
hv*anIa I'" be .-V....v... -..0 PARKING- mil bjpainlmg ,n R inch 'Itide. I~ stripft lor 1r. 'ftet in each diNdion in front oIlhe hydrn: in MICh.
_ \llal." noIll1_ by ptrlltd.-s. lo!1erir,g 10 bt in.._ 6" by "".
BUILDINGS:
'D" Adell-. numeratl.... be installed on the building at lhe 'rGr.t 0' ether ~.~velj k..'cal'c" ir. .;o....:-h J mtlnner as 10 be vWIbIe from the ~... Com-
7' ..,..,. ~IIIA lwnIyadlhn nurn...... snal be 6 inchft ~d. SW1!J6a family adOte!& ~:"l~~1"lhall be 4 inches t". The calor of ll\enUlMf'llllhllCMo
.... _IIlI ",*,,"'IIlI-.,vun:1
~ kIInIIy Mc:h 1iI'... eIKIrtc meter MIh &he 1"iUr'i1Mr of ttw unlt!l MlVe...
C- F.. ~ mull be ntalad c:-rior to it.. ~ be~ Of;C"'~led. The mm""ll'T: ~ljn.J I ~.. ':;"', tit., extinguilher ilU 10111C. Mininum ~ - IIIIan at
fire uIir.gulllwm mull be IUd'I thai no ~.rior pe-f ('If Itoe btlftdi"!1 i... ~.'ef ""5 ;aet t'il/t; d~*. )tV 'rum 11 lu I~,
o ApIrtmenI ~ with l' or rncHW unitI. hot_ Cf:tottMI) with 2tI or ir.o{e un:l6. 0.'- ar,a.1nl:Jr.l'" ;;: I hot. imot_llhrelt lIones or mote in height.... be
equipped with auIOmItic.... 'lp'tnldPrs 0Migr.ed to NFFo';'.I'.;Il'larn~.
o AI buIcIngs. over 5.000 aqu.re ffr&t II.... t'Ie e~ippf:td \'A!h OUt :1.Jtc':,.lfl4,; f:r~ !Uril"lhcl ~~-!t:a.. ';;d'!i~"t:1." ~'.. f'iFPl\ Slandilrda. This includes ...tingbuildngl
vaeanlover - days. .c _. ,
'R1 ...... ptDna for h fire prot..."'Ction system t.) iM foire Oeo~rtr I~rl .,r,,~, toJ bt::ijillr:i'~~ t...Jn ;I'..;.;IK'" C".ll~ ;,i~ "tanl PErM;t required. ~ ,;;If.I''NSS''IO/f''''
a Ttnant irnprawmecU,.,.. spri!1t:tered wl~Il~. a,e I,] be 1t'P(,]'I.~ t. It.~ FI(i' (j~~nl ;>>no"!t' :r.irt~' o:cnsll'llctior.. Permr. required. Sy~~"'"
iPnMdIt lire aIafm (required IhIOUgt.ouU. f14rs ",",uSI te .~rove<J t; It,,-, e,t(. :i(pdl'Wlent pt~r 10 si~!I .:..II:"\S~MaIICll--. "'1!rr.'lI1 required.
Fire [)ep;.IrtmInI connection to sprinider s "'t~.:I!a~ ~ iSI'!:":. s,,"," .Je re~~Ire.j a' Fire Qepanmftnt }EP"'C)ve( Io.:allon
Fft~~lIqUirad.lpPlya~200'''1 ItdS1_. (9<.PI :;lJ4.5.1bil. ~ f'-;:i~/Vf6{y /'I<6~fAvf/JIr1.-'r
Fn Sprtnlder moullof;'" NqUired. Pill"!. Inusll-e ~~(,:VfId by thu F ll.~ Department pnor to Ihe start of ror,s'f\ldion. Pem.iI flIIquired.
o Clc:cup8nt load.
Nate: The IPIHk;ant mual request in Niit~,~. iU''f .-"'1!1~~:0 F Ire -.~a"m-=!n! 'equiremll1ls.
ADOITIONAlINFORMATlON: _._ n___ ____
.--- --..------------. ... --. .--.-.----.
All 1"'"
_J'_"___J _ ".__
...-...--.----
. .
.
.-- .....
SAN BE..AJU)INO MtlNIoP.u. W ATEIt DErAIl....... c
STANDARD REQUIREMENTs
lwieu(PIano: C.lAP ~G. oI::..f2a 0...(" 'W' s-= 9-0:1
o-rro..elopor. r~ -.1- OIA.T" gl.\.~C.E~~ /~ LA~t~ . . .' 'j). }.It t.MJ
TypufProjOC4;C!.o*Tl\K..,/f)YUAn:. 'N~A1"cUA.rJtW:ii~ N'=~~" I . M
r .' a SIN.~r{)~~ftc~UllJ.1. .
.An. nb.&........... ENCn..Ul..lN~ "
eo.r.:t: ~~ .....,,( 70'Lr'2....
14- ........~ Fu,~
NOla: AD W., ..... ... SuIljolcleo.. ...... &\ _...'''''- 01... W.. o.,.r- ~.
J(..at.....AdJ-IkPrajooC; fZ. ~c...T\l(.. 'I..GItIJ?li>E.. I~~ PLk&-
)t.~w_~~ .....oIw.......~,: % H""Flowa20poi:
I( 'I)p.. Sla. ---. aad Dioc ~ eo N_ PIrw X,.. W "- 'DO Fr-
~-,...O T
0...................... 1IlI""" 1"1 '. Side IIlIb Meror.
o 0IkiIa W_ PIlCiIiIi. .....red. .
o Atra NaI s.-I by Sa.. Beraardillo Ilf"~' W_ n.s--.
D 1'_..
WA~ nlJALITY NWTIInl.!
c...t.ot: ~a.\ A-UJ F~ ....... ~ Fu: n!1- n.lID
.:Il..P.P. .. U'...w om. .......Illorvil:e ('_r-'- J:oli!. )>OMESTl (... SE.LlJ,c..L--
)(DQ"C"'D--,-,*,o...;c.bpndlll~C. .~.. rot.. 1U.\4fnolt" flu.-~ullc.t
~,- kt\Dw Dtwlce 10 berr., " . IWoce WIII:c Service... be ActMud.
o No ....,.....- Dwio>> a.pind oll)il r...
blVlDnNVnn'AI. rnNTRnLIINDIMTR1'u.. W~~
c...t.ot: . A~y r..N(py "- 81,.ra.tft., Fu:,m- rz.S-9
Nco: No.... R.S" ....... W_ Ul ,Nay be ......,1-<1. U.... HoIdiac lad HauIiDa iI I'Ivvidod for....... All Lt:1 .' I
MIl be I 1:100 a.JIao C..-itt wid. Is....-..... r...........
D WuIIrioI W_ ,.". ........
DO_JIll. j~~'
D~hqDind.
D SIIIdIOiI ~ RequIred.
D No '"'- lit dIia Tima.
gWEJI ~&..l~rrv nrrnDUAnfDI!
~ NUL ~~~(I\I l'lIcIM: :n1/-J'D93 Fu: 718'1-m."
NOla: Proof of hJ-nt MIlIl be ~ 10 .. Bo.iJdill& " Safety DopuI_ Prior 10 11_.. of.. Ro.;!d;"I r.n.iI.
Cl No Sa..... ~ J:... App5"bll II 'I1UI Tia.. .
)(s.w.rc.p.cily Foe MUll BcPUllDtba W-o.....-- -'"n ~ Per DIY. ~ 0weIliIIJ t1aill:~
D SoltIjacI to .....lcuWioa of Fee Prior 10 tba --- 01 a.ildiDc PwnaiI.
!lnId........ '" Eol~ G.l1aM Per Day:.:2!J. ~~ eo I ~ :: .
~: Cn.tJ;t~ ~~
(:;u. ~_~.J)
ftHIOlfQ."" CMIt
I.IID
~
- 3D!)
~/D
~
.
City of San Bernardino Parks, Recreation and Community Services Department
Standard Requirements
Inon-Out Burger
Tippecanoe Ave.
Case: Cup Oil 08 ~.O2.
Date:fr9!~
Reviewed by: Jim Gondos
General Requirement:
(X) Commercial Industrial and Multi-Unit
() Assessment District
() Residential
() Purpose, Guidelines and submittal procedure
( X) Irrigation and Landscaping Plans.
() Contact the City of San Bemardino Parks, Recreation and Community Services
Department at (909) 384-5217 or 384-5314 for specific detailed requirements.
Specific Requirements:
( X) Maintenance oflandscape areas
() Planter Areas
() Interior Planter Areas
( X) Irrigation Systems
() Setback Areas
( ) Slope Areas
( ) Ground Cover and Bedding Material
() Erosion Control
() Weed Control
Plant Materials:
() Plant list and climatic conditions
( X) Street Trees
( X) Plant Material Size Requirements and Ratios
Inspection and other Requirements:
( X) Irrigation System
( X) Landscaping
() Hardscape Items
( X) Street tree Specifications
() Arborist Report
() Removal or destruction of trees
( X) Screening Requirement (City, Dev. Code)
Note: The applicant must request, in writing, any changes to the Parks, Recreation and Community
Services requirements. Additional information:
Standard reauirements are issued for the landscaoim! and irril!ation of this oroiect. The desian
theme of the frontal!e alonl! TioDecanoe and Harriman Place will include turf to match cxistiDl[
oroiects.
City of ~..__ Bernardino Public Services De~ tment
Development Project Conditions of Approval
300 North D Street - 4111 Floor
San Bernardino, CA 92418
Project Number: CUP
Project Planner: Aron Liang
Review Date: 4.24.2003
Project Description/Business Name: Demolish and relocate In-N-Out Burger fast food restaurant and drive thru.
Project Loatlonl Address: APN 0281-082-16 et al (current site @1944 South
Tippecanoe)
Service Account: Jack's
Reviewed By: Michelle Dyck- Turner
e-mail: dyck.turner_mi@ci.san-bernardino.ca.us Phone:
909.384.5S49 13162
. StandJrd Development Requirements
PrO/ect shall meet all applicable Standard Development Requirements as attached.
. Intearated Waste Manaaement Survey
Applicant shall submit an Integrated Waste Manaaement Survey for each of the activities marked below with the InItYI
application to Planninc for approval by the Public Services Department Refuse and Recycling Division prior to Issu~e of
permits for each activity.
The information contained in the Survey as well as any related comments and mitigation provided by Public Services sIYII
be summarized In the Initial Study and EIR if required for the project under CEQA.
'.~:..;-~.
18I Demolition & Site Preparation
o Construction I Renovation
o Business Operations or Event
.;. .:'~-.:
. Additional Requirements or Recommendations
Applicant shall complete an Integrated Waste Manacement Survey for the demolition and site preparation of the protect.
Applicant shall also redeslcn refuse enclosure to meet PublicWorks Standard 508, dimensions 8 x IS', incCll'\lllOl1tlnt
the attached pedestrian access deslcn. Any storace areas for grease bins or any other bins or equipment other than refuse
and recycllnc bins must be enclosed In a separate (but may be adjacent) enclosure. Enclosure allcnment and access for
services vehicles is acceptable as drawn.
MDIPS4.22.2003
City of San Bernardino Public Services Department
Standard Development RequIrements
300 North 0 Street - 4'h Floor
San Bernardino, CA 924 t B
COMMERCIAL lit INDUSTRIAL DEVELOPMENT
CoIIecdon Services
I. The collection or transportation of refuse, recyclable discards, or lTeen waste from any commercial and Industrlalloadons
within the City shall be provided by the City of San Bernardino Public Services Department unless otherwise franchised or
permitted. [MC ~ 8.24.140)
2. New accounu require a completed Service Application, with a full depoSit and a copy of manuals for all compactOr unla,
returned to the City of San Bemardlno Refuse & Recycllnl Division prior to Issuance of the final Certificate of OcculNncy.
3. Shared refuse and recycllnl services for multi-tenant commercial sites shall be billed to a slnlle owner or property 1NIYI'r;
leases shalllnclude terms to accommodate sub-metered services.
4. All refuse contalnln"arbalf, such as food, velftable, or animal wastes, shall be removed at least twice weekly, and all OCher
solid wastes shall be removed at least once weekly. [58 County Health, Sanitation and Animal Reluiatlons ~ 33.083]
5. All commercial establishmenu leneratlnl 6 cubic yards or more of solid waste per week shall establish City recyclinc services for
maximum diversion within 30 days of openln, business, ll[ establish an alternative diversion prOlTam to be identllled In Ihe
IWM Survey for the project.
AutllImted Cart Service to Nonresldentl.al FiclDtles
6. Nonresidential establishmenu such as small offices, shops, meetlnl halls, or churches, which Ifnerate 2 cubic yards or Ies5 of
non-bulky waste per week and are located on the same side of a residential block receivlnl automated cart service shall meet
q..-", residential rather than commercial requlremenu.
;.~: "':
. , . .;ervlce Vehicle Access
7. Projecu shall meet City Enlineerinl requlremenu for commw;lal vehicle drive access alonl the main inlTess to and earns from
enclosures. These requiremenu shall_limit requiremenu for Fire vehicle access.
8. Property without throulh access shall Incorporate at least one of the followinl deslcns:
. A cul-de-sac with a 4().foot turnlnl radius for a 32.foot vehicle lenlth
. A hammerhead turn with a 4().foot tuminl radius for a 32-foot vehicle lenlth
Gated Access
9. Gated properties that are locked and unmanned on service days anytime between the hours of 5 AM and S PM ~
throulh Saturday shall provide access code or key to Public Services.
RoII-oIf CoInpKtor UnIa
10. Sealed compactor unlu dedicated selNrately to refuse and recyclables may be required to be Installed at facilities wItlI ill
anticipated waste Ifneratlon of 60 uncompacted cubic yards per week.
11. Roll-off compactor uniu must be Installed accordinc to manufacturer's and City En&ineerinc specifications with the compaaor
hopper and roll-off box on a concrete slab with a minimum 3-foot continuously paved pertmeter for safe access.
12. Roll-off boxes at locations recelvinl City service must meet City rail and hook specifications per City En&ineertnl Standard 510.
Boxes shall be desilned with disposal end opposite hook.up; boxes with same-side desicn may be subject to a roll-back charp.
1 3. Compactor equipment shall be screened from view of public rieht-of-way by materials comlNtlble with bulldinl architeCture ad
Iandscapin, as specified by City of San Bernardino Development Code. [MC ~ 19.20.030 (21 )]
14. locatJon, orientation, and dimensions of enclosures, enclosure lates, pedestrtan entry, compactor pads, and compactOl'
screenln" shall be shown on site plans and labeled that construction shall meet City Enlineerinl Standards.
MOIPS4.22.200J
City of San Bernardino Public Services lJ itment
Standard Development Requirements
Pace 2 of J
.-::..
-xIstInl Bin Enclosures
IS. Exlstln, bin enclosures must have minimum inside dimensions of 7'9" x 9' OR I S' x 4'S" to fit two 3CY bins, with block walls,
Inside bumper euards or curbin" and solid steel,ates, OR enclosure(s) must be reconstructed to meet Enpneerln, Standard
508, and the enclosure may be relocated for best drive access and allenment, plans subject to Public Services approval. (PIe_
note, if site will ,enerate less than 2CY of solid waste per week, see Residential Cotlectlon options.)
Front-load Bin Enclosures llt Access
16. Minimum double-wide enclosures of 8 feet by I 5 feet shall be required for all development to allow for dedicated recrdna
bins, except where potential waste ,eneratlon or space Is restricted. (Specifications adopted In accordance with Model
Ordinance as required by CA PRC ~429111
17. Front-load compactor units must be contained In an enclosure laree enou,h to hold the unit and one additional bin faci..
Ienethwlse.
18. Front-load bin and compactor enclosures must be constructed accordln, to City Enpneerlnl Standard 508. Rear or side
pedestrian entry shall be provtded on enclosures for all multi-unit residential development. Pedestrian entry on free.stancInr
enclosures shall have a 4-foot width, no pte or door, and an 'L' shaped block screen the same heleht of the enclosure.
19. Pedestrian access from buildl.. exlt to bin enclosure shall be a minimum 4 feet wide and continuously paved, without crossIne
curbs, steps, or driveways.
20. Enclosure pads shall be level to restrict bins from drlftln, and deslened for proper drainale of surface water.
21. Enclosures must be at least 5' from combustible walls, eave lines, or openlnp. [98 CA Fire Code ~ 1103.2.21
22. Only refuse bins and the contents therein for disposal may be stored In refuse enclosures. All other equipment, IIxtures, and
materials such as electrical panels, circulation or exhaust ducts or vents, lfea5e bins, or surplus supplies are strictly prohibited.
23. Enclosures shall be buffered with landscaplnl when vtewable from public rleht-of-way, and veeetat/on shall not restrict pteS or
exceed heieht of enclosure. Include veeetatlon on landscape plans.
L4_ Enclosures shall be located with ptes aliened for straleht access for service vehicles.
25. Enclosures shall not obstruct drive aisles, driveways, loadh11 zones, parkin" handicap access, or visibility of cross-traftlc from
drive aisles, alleys, or streets. Location shall not cause service vehicle to block access drives durinl while bins are bei.. serviced.
26. Enclosure ptes shall not open Into drive aisles, parklnl spaces, or walkways. Enclosures placed adjacent to parfd.. shall be
separated by a minimum Hoot wide curbed area out to the farthest point of both ptes, and desilned to safely restrfct pteS
from openinllnto parklnl SpaCfl or landscaped areas..
27. Location, orientation, and dimensions of enclosures, enclosure ,ates, and pedestrian entry, shall be shown on site plans and
labeled that construction shall meet Qty Enpneerinl Standards.
Multi-unit Dwelllnp
28. Commercial requirements shall apply to all multi-unit dwelllnp over 8 units, unless otherwise approved.
29. Disposal chutes Incorporated into multi-story buildinp must have dedicated chutes for refuse III comminlled recyclables. IIodI
chutes shall be clearly and permanently labeled at each chute openinl and exit. [Specifications adopted in accordance with
Model Ordinance as required by CA PRC H2911]
MDIPS4.22.200J
Clcy of ~n Bernardino Public Services Lll anent
Standard Development Requirements
Pa,e 3 of 3
.ESIDENTIAL TRACTS a LOTS
Collection Services
I. ResIdential refuse and recycllne services are to be provided by the Clcy of San Bernardino Refuse & Recycllne DlvlsIon a
minimum of once weekly.
2. The Clcy shall provide upon request one set of a blue, creen, and black 96 or 64-eallon automated service cart to each II.
family unit, OR one set to every 2 units In multi-unit dwelllnp up to 8 units.
3. Commercial requirements shall apply to all multi-unit dwelllnp over 8 units, unless otherwise approved.
4. Nonresidential establishments such as small oflkes, shops, meetine halls, or churches, which ,enerate 2 cublc yards or 1m of
non-bulky waste per week and are located on the same side of a residential block receivlne automated cart service shan meet
residential rather than commercial requirements.
Automated Cart Sroraae a Access
5. Residential units shall construct a minimum 4 feet by II feet concrete pad located out of view of public rieht-of-way for storaP
of each set of up to 4 automated carts. If visible from the public rieht-of-way, the storace area shall be screened by IandscapInc,
or masonry or solid wood fenclne.
6. The path of travel from the storace pad to street shall be continuously paved without step or curb with Hoot minimum late
openinp In walls and fenclnc. The path of travel may include a paved driveway or patio area.
Service Vehicle Access
-: Projects shall meet City Enllneerine vehicle access requirements on all streets within a residential tract. These requirements sIuI
nor limit requirements for Fire veIrIcIe access.
Curbside ServIce Area
8. A minimum t 4-foot linear space on the street alone the curb adjacent to the driveway of each residence must be clear for
automated servlce carts, with a minimum 2-foot setback and t 3-foot vertical clearance of all obstrUctions such as StrUCtUres,
fences, and raised landscaplne.
Gated Access
9. Gated properties that are locked and unmanned on service days anytime between the hOUI1 of 5 AM and 5 PM Monday
throueh Saturday shall provide access code or key to Public Services.
MDIPSUUOO3
Apr-DS-ZOO. 1.:.Z
Froo-WILLIAM B. BRINCKLOE JR
ua m sm
T-338 P.ooztooz F-Iro
EXHIBIT 4
WILLIAM B. BRlNCKLOE, JR.
Attorney At Law .
11S1 Dove Sm:cI, Sui1ll27.
Newport Bad!, CaIifamia 92660-2842
Email: wbb@lrlnsaaionlaw.nel
Tel (949) 47s.6!l93
FIX (949) 475-899
Direct Dial (949) 475-6994
April 6, 2004
~
Mr. Aron Uang
Senior P1annc:r
City of San Bernardino Development Services Depamnent
300 North "D" StRlet
SanBcmardino, California 92418-0001
Re: Conditional Use Permit Application No. D4-02 (the "CUP") of In-N-Out Burprs ("'INO")
Dear Mr. Liang:
This letter sball serve to acla1owled~ mceipt by INO of the cam:spondclll:c fmm Mr.
Weiser to the City of San Bernardino P1ann;,,! C.nmm"~()II and City A~ .~'
2004, scttiu.8 forth the objection of the clia1t8 of Mr. Weiser to thC CUP. In !NO
disagrees With many of the conlClltiona and/or statc:mcnts set forth in the
HowevCt, INO does not believe it is appropriate or merited to respond in detail to the ~0IlI
oftbe clients of Mr. Weiser. . .
For the information of the Plann;;JbCnmmiOtion, the Rcdcve~t ~ of die City
of San BcrnarcIino (the .. AgcIICI") and are paq.ies to III Owner Plnicipation Alm:c:lDeat. IS
amended (collcctivc1y the "OPA")bwhich remains in full foIce IIld effect. PUrdIcrman,
pllISUlll1t to the tcni1s of the OPA-IN is obliKatcd to fl!2CCSS an"LancJ U$O !oppmvals",IS'-
tenn is defiDCd in the OPA, which. includes tTtc-.CUP.1bus, bascd,in pat1.~. tbr: h _.R""..
INO has the absolute legal right to ~ forward with the CUP and respeCIfully ~U!C
PlAnning Cnmmiooinn to approve !he CUP. .C.
The I'\annjJ!g Cnmmi..ion is ~ to make this correspondence part of the RCOld at
the April 6 2004, Plinning COU11'1ission . on the CUP.
William B. Brinck1oe,Ir.
WBB:dp
cc: Fred G. 1iP,,;n.., CCIM (Hand Delivered)
Mr. Raymund Villanueva (via facsimile 626) 338-9173)
Ms. ~ A.~(via facsimile (626) 338.9173}
DavidF. Go . (via facsimile (909) 387-1138)
Henty B~no, Ir.. q., Sr. Deputy City Attorney
City of San BernardinO (via faCsinillc (909) 384-3238)
Mr. Marlc Bush (via facsimile (909) 305-2397)
Ur-"'--a...a._-.. u.a.
EXHIBIT 5
ffi[g@[gOW~[ID
APR 0 6 2004
OFFICE OF THE CITY ATTORNEY
CITY OF SAN BERNARDINO
CITV Of SAN BERNARDINO
DEVELOPMENT SEIMCU
OEPA.flTMENT
JAMES F. PENMAN
CITY ATTORNEY
TO:
Planning Commission
FROM:
Henry Empefio Jr., Sr. Deputy City Attorney
DATE:
April 6, 2004
RE:
Agenda Item No. S, Planning Commission Meeting on April 6, 2004
Conditional Use Permit No. 04-02
Proposed In-N-Out Burger at the Southwest Corner of Tippecanoe Avenue and
Harriman Place.
This memorandum is in response to a letter addressed to the Planning Commission and the City
Attorney dated April 3, 2004, from Attorney Frank A. Weiser, regarding the above-referenced
Conditional Use Permit application and the case Inland Valley Development Agency v. Vibhakerbhai
B. Patel, et al. San Bernardino Superior Court Case No. SCVSS 089192, Court of Appeal Case No.
E034937 (hereafter "/VDA v. Patef').
/VDA v. Patel, one of several eminent domain actions filed by the IVDA against property owners
within the HUB Project Area, involves the site of the subject CUP. In /VDA v. Patel, the IVDA
was granted Judgment in Condemnation by the Superior Court, which was appealed by Patel and is
pending before the Fourth District Court Of Appeals. There has been no order issued by any court,
including the Superior Court and the Court of Appeals in this case, which prevents the City of San
Bernardino from processing and taking action on the subject CUP.
In his letter, Mr. Weiser incorrectly states that this eminent domain case was initiated in order to
accommodate In-N-Out Burger's purchase ofthe Patel property. Attached is a copy of the NDA's
Resolution of Necessity (Exhibit I), which states, beginning on page 7, Section 8, that the public
interest, convenience and necessity require the acquisition of the Patel property for the HUB Project;
and that the HUB Project will eliminate blighted conditions and provide necessary public
improvements such as the realignment of Harriman Place and additional street right of way for
widening Tippecanoe Avenue.
HE'cj[PlanningCommission. .Mem]
300 NORTH "0" STREET. SAN BERNARDINO, CA 92418-0001 . (909) 384-5355. FAX (909) 384-5238
Memo to Planning Commission
Date: April 6, 2004
Page 2
In his letter, Mr. Weiser also incorrectly states that the "DDA has been amended to reflect the
litigation contingencies." In fact, there was no DDA (Disposition and Development Agreement),
but an Owner Participation Agreement ("OP A") between the Redevelopment Agency of the City of
San Bernardino and In-N-Out Burgers, which was amended on September 15, 2003, to extend the
dates for performance. The Amendment to the OPA did not release In-N-Out Burger from its
obligation to purchase the Patel property (copy of the OPA Amendment is attached as Exhibit 2).
Respectfully submitted,
~ ~/Ot~,
Henry Empefio Jr.,
Sr. Deputy City Attorney
cc: Frank A. Weiser, Esq.
James F. Penman, City Attorney
Enclosures
HfJcj(PlanningCommission..Mem]
Exhibit 1
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~./
RESOLUTION NO. 2002-21
A RESOLUTION OF THE rNLAND V ALLEY DEVELOPMENT
AGENCY DECLARING THE PlJBLIC INTEREST AND
NECESSITY OF ACQUISITION OF LAND FOR COMMUNITY
REDEVELOPMENT PURPOSES OVER THE PROPERTY
KNOWN AS SAN BER."1ARDINO COl;NTY ASSESSOR
PARCEL NO. 0281-082-57 IN THE REDEVELOPMENT
PROJECT AREA OF THE INlAND V ALLEY DEVELOPMENT
AGENCY--PATEL, ET AL.--(1999 REDEVELOPMENT
COOPERATION AGREEMENT FOR THE HUB PROJECT)
WHEREAS, the Inland Valley Development Agency ("the "IVDA") was established in
January 1990 pursuant to a joint exercise of powers agreement as amended, for the purpose of
assisting in the conversion, redevelopment and ciVIlian reuse of the former Norton Air Force Base
and surroundmg blighted properties located within the City of San Bernardino; and
WHEREAS, the member govenmlental entities of the rvDA include the County of San
Bernardino, a political subdivision of the State of California, and the City of Colton, a municipal
'-./ corporation, and the City ofLoma Linda, a municipal corporation, and [he City of San Bernardino,
a municipal corporatIOn; and
WHEREAS, the IVDA has been granted specific powers by the Slate Legislature in 1989
(Statutes 1989, Chapter 545: See now Statutes 1997, Chapter 580 and Health and Safety Code
Section 33492.40, et seq.) to assist in the redevelopment oCthe former Norton Air Force Base and
the surrounding lands in proximity thereto pursuant to the Community Redevelopment Law (Health
and Safety Code Section 33000, et seq.); and
WHEREAS, the IVDA has adopted the Redevelopment Plan for [he Inland Valley
Redevelopment Project Area (the "Redevelopment Plan") in accordance with the provisions oCthe
Commumty Redevelopment Law, and the Redevelopment Plan provides for community
-~
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redevelopment activilles to be undertaken within the redevelopment project area (the "Project Area'')
as more fully described in the Redevelopment Plan; and
WHEREAS. approximately eighty percent (80%) of the Project Area is situated within the
territorial jurisdiction of the City of San Bernardino (the "City"); and
WHEREAS. the IVDA. the Redevelopment Agency of the City of San Bernardino (the
"Agency") and the City have previously entered into an agreement entitled "1999 Redevelopment
Cooperation Agreement", dated as of July 12. 1999. pursuant to which the IVDA. the City and the
Agency have initiated the redevelopment of a potion of the Project Area identified in the 1999
Redevelopment Cooperation Agreement as the "Agency Implementation Area"; and
WHEREAS. an approximately twenty five (25) acre portion of the Agency Implementation
Area has been designated by the Agency as the site of a community redevelopment project known
as the "HL13 Project"; and
-
WHEREAS, the IVDA has previously designated the Ciry to serve as the "lead agency" as
this term is defined In the California Environmental Q~ality Act of 1970, as amended, (UCEQA")
for the purpose of conducting an environmental review of the HUB Project; and
WHEREAS. the City has certified a Final Envirorunentallmpact Report as of May 21, 200 I
(the "FElR") for the HUB Project. in accordance with CEQA; and
WHEREAS. the HUB ProJect, as analyzed in the FEIR includes the following key elements:
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(i) the realignment and construction of a new public street improvement project
referred to in the FEIR as the Harriman Place Improvement Project;
(ii) the assembly and acquislllon of public street right-of-way for the Harriman
Place Improvement Project;
(iii) the assembly of land for the redevelopment of a new commercial retail
shopping center to be Wldertaken by the SBT Partners, LLC, a California limited liability
company, under a redevelopment agreement with the Agency; and
(iv) the assembly and exchange oflands for the redevelopment oca restaurant by
In-N-Out Burgers, Inc., a California corporation under a redevelopment agreement with the
Agency; and
WHEREAS, the Agency has transmitted offers to purchase parcels ofland situated within
the portion of the Agency Implementation Area designated as the HliB ProJect, to the owners of
such land, including to the owner of the property more particularly described below in this
Resolution; and
WHEREAS, the Community Development Commission of the City of San Bemardino, as
the governing board of the Agency has adopted a resolution, dated December 17,2001, in which the
IVDA is requested to consider the acquisition of lands identified therein for the Hl..;B Project by
condemnation, if necessary, in accordance with the terms and provisions of that certain agreement
entitled "Redevelopment Condemnal1on Memorandum", dated as of November 5, 2001, by and
between the IVDA and the Agency; and
~
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WHEREAS,the IVDA has transmitted offers to purchase parcels ofland for the HUB Project
to the owners of land as Identified in the resolution dated December 17,2001, of the Community
Development Commission of the City of San Bernardino, including to the owner of the property
more particularly described below in this Resolution; and
WHEREAS, on April 10, 2002, after not less than fifteen (15) days written notice to the
owner of the property more particularly described below in this Resolution, the IVDA conducted a
hearing for the purpose of affording the owner of such property a reasonable opportUnity to appear
and be heard on the matters referred to in Code of Civil Procedure Section 1240.030 and whether
the IVDA has met aU other prerequisites for the exercise of eminent domain to acquire the subject
property as hereinafter described, for the community redevelopment purposes; and
~
WHEREAS, the IVDA has determined as a result of such hearing on Apnl 10, 2002,thatthe
public health. safety and welfare require the IVDA to acquire the subject property, as more
particularly descnbed below in this Resolution, for community redevelopment purposes to
implement the HUB Project.
NOW THEREFORE. BE IT RESOLVED THAT THE INLAND V ALLEY
DEVELOPMENT AGENCY DOES HEREBY m,m. DETERMrr.c AND DECLARE AS
FOLLOWS:
Section l.
The information set forth in the recitals of this Resolution is true and correct.
Section 2
The property to be acquired under the authority of this Resolution (the
"Property") is located in the Project Area in the City of San Bernardino, California. and is also
known as San Bernardino County Assessor Parcel So. 0281-082-057 (1914 South Tippecanoe
.~
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Avenue (Lots 21 and 22 of Tract ~o. 2743, Loma Linda Gardens)). The Property is more
particularly descnbed tn the legal description attached hereto as Exhibit "An The interest in the
Property to be acquired consists of all ofthe fee simple absolute title interest in the Property, and all
of the right, title and interest of each person therein, includmg the acquisition of each and every
possessory interest thereon, together with all easements and appurtenances thereto.
Section 3.
The IVDA has transmitted a notice of hearing to Vibhakerbhai B. Patel. et aI.,
by and through their attorney of record, Frank A Welser, dated March 18.2002. A copy of the
notice of hearing is on file with the Clerk ofthe Board.
Section 4
The IVDA hereby acknowledges receipt of the written reports and infomlation
relating to the HUB Project and the acqUIsition of the Property by the IVDA for the HUB Project,
including without limitation the rvDA staff report. dated April 10, 2002, and the oral report and
information submitted to the rvDA during the coursc of the hearing conducted on April 10, 2002.
Section 5
The IVDA hereby finds and determines that the hearing conducted by the
IVDA on this matter on April I 0, 2002, was full and fair, and that each interested person has been
accorded a full and falr opportunity to present evidence and testimony relating to the HUB Project
and the matters described in Code of Civil Procedure Section 1240.030, and the acquisition ofthe
Property. al1d all interests therein, by the lVDA for community redevelopment purposes by the
exercise of eminent domain al1d other relevault matters.
Section6.
As part of the hearing at which this Resolution is adopted, the IVDA reviewed
the FEIR and Facts, Findings and Statement of Overriding Considerations Regarding the
Environmental Effects from the Environmental Impact Report for the HUB Project (State
ClearInghouse No. 2000081074) that were certified and adopted, respectively, by the City of San
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j
Bernardino, as the Lead Agency, on May 21,2001, regarding the HUB Project. The IVDA, as a
"responsible agency", as this term is defined in CEQA has independently reviewed the FEIR
certified by the City of San Bernardino for the Hl,B Project. In Its independent discretion, the IVDA
hereby finds that the FEIR adequately describes the HUlJ Project as shall be undertaken by the City
and the Agency, and SBT Partners and In-N-Out Burger, as applicable under agreements with the
Agency, and that the FEIR assesses all of the Significant environmental effects or impacts of the
implementation of the HUB Project. The IVDA further finds and determines that there are no other
significant environmental effects or any differences in the severity of environmental effects
associated with the implementation of the Ht.,lJ Project from those assessed in the FEIR that would
require additional environmental reVieW under Public Resources Code Section 21060 or Title 14
California Code of Regulations Sections 15162 or 15163. The Facts, Findings and Statement of
Overridlllg Considerations Regarding the Environmental Effects from the EnVironmental Impact
Report for the HUB Project (State Clearinghouse No. 2000081074) as adopted by the City of San
Bernardino on May 21, 200 I, regarding the HtJlJ Project are applicable to the IVDA's consideration
as a "responsible agency", as thiS ternl is defined in CEQA, of the envirorunental effects oCthe HUB
Project in adoption of this Resolution and hereby adopted by this reference as the findings of the
IVDA under Title 14 California Code of Regulations Sections 15091 and 15093.
Section 7.
The IVDA hereby declares its intent to acquire the Property for community
redevelopment purposes in the name of the IVDA in accordance with the laws of the State of
California and the Community Redevelopment Law. the Redevelopment Plan and specifically Health
and Safety Code Sections 33391 and 33492.40, and the lVDA hereby further finds and determines
that all of the prerequisites to the exercise of eminent domain by the rvDA with respect to such
acquisition of the Property have been met.
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Section 8.
In accordance with the proviSIons of Code of Civil Procedure Section
1245.230 the IVDA hereby finds, determines and declares as follows:
(a) The public interest, convenience and necessity require the acquisition oftlle Property
for the HlIB Project. The HUB Project is necessary to alleviate conditions of blight in the Project
Area and to provide for the orderly redevelopment of the Property and other lands included in the
site of the HUB Project. The HUB Project site currently displays a number of conditions of blight
including the presence of residential use structures which show signs of dilapidation and
deterioration. The small residential lot configuration of a substantial portion of the HUB Proj ect site
(fonner residential zone lots) prevent or substantially hinder the economically viable use of such
lands in their present condition and City zoning classllication. The lands in the HUB Project site
I
!
I
I
include a substantial nwuber of subdivided lots of inadequate size for proper usefulness and
development that are in multiple ownership. Lands in the HUB Project site, including the Property,
abut a public collector street (Laurelwood Drive) which was not designed or improved to
accommodate current levels oftraffic. Further more, Laurelwood Drive has not been improved with
curbs, gutters and sidewalks, and this local collector public street, in its e:osting configuration and
alignment, is substandard and is not compatible with the commercial reuse and redevelopment of
the lands In the HUB Project site The acquisition of the Property for the HUB Project shall also
imp lement the 1999 Redevelopment Cooperation Agreement and the installation and improvement
of the Harriman Place Improvement Project by the City and the Agency and provide for the
relocation of persons and households who presently live along the heavily traffic congested streets
in the HUB Project site, to safe, sanitary and decent housing. The lands Included in the HUB Project
sIte include an excessive number of cleared or vacant lots in an area which has been developed for
urban uses.
\.----
592002:10984.1
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-'
(b) The Hl1B Project is planned or located In the manner that Will be most compatible
with the greatest public good and the lea.!;t private injury In light of the fact that the HUB Project site
displays a number of symptoms of blight. The HUB Project will eliminate these blighted conditions
by providing for the necessary public improvements such as the Harriman Place Improvement
Project and securing additional public street right of way dedications for Tippecanoe Avenue in
anticipation for the eventual construction of future freeway interchange improvements and freeway
ramp improvements for Tippecanoe Avenue and the Interstate 10 Freeway. In its current condition,
the overcrossing of the Interstate 10 Freeway at the intersection of existing Rosewood Drive and
Tippecanoe Avenue, is one ofthe most heavily congested public street intersections in the Project
Area. The HUB Project shall also facilitate land assembly and reuse of developed urban area which
has stagnated in recent years under the burdens of small lot size, incompatible uses, diverse
ownership and inadequate public improvements. The HlJB Project shall also confer substantial
environmental benefits upon the Project Area and the community generally, will provide for the
relocation of person and households who reside along the busy and substandard sections of
Rosewood Drive and Laurelwood Drive to safe, samtary and decent housing and will result in
employment opportunities and an expanded local tax-base and the promotion of development of the
HUB Project site in accordance with the General Plan: of the City
(c) The Property described in this Resolution is necessary for the HUB Project as its
acquisition and reuse for the HUB Project is part of an integrated design plan to eliminate blight and
provide for the improvement ofthe Harriman Place Improvement Project and the elimination of the
substandard sections of Rosewood Drive and Laure\wood Drive and the improvement of a highly
congested regional public street traffic mtersection at the overcrossing of the Interstate 10 Freeway
and the intersection of Tippecanoe Avenue and Rosewood Drive.
.'-~.
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(d) The offer required by Government Code Section 7267.2 has been made to the owner
of record of the Property by both the Agency and the IVDA, and neither the Agency nor the IVDA
have been successful in negotiating a purchase of the Property with such owner based upon such
offers on tenns which are acceptable to such owner of the Property.
Section 9.
(a)
The law firm ofMirau, Edwards, Cannon, Harter & Lewin, as special
~
legal counsel to the IVDA, is hereby authorized and directed to prepare, institute and prosecute in
the name of the IVDA such proceedings in the Court having jurisdiction thereof, as may be
necessary for the acquisition ofthe Property Special legal counsel to the IVDA is further authorized
and directed to obtain an order of such Court granting the lVDA, the Agency and contractors and
licensees of the Agency, the right of preJudgment possession and occupancy of the Property at the
earliest feasIble time 1I1 order to implement the HUB ProJect. Special legal counsel to the IVDA is
also authorized to consult with legal counsel of the Agency, as convenient in COlUlection with the
acquisition of the Property by eminent domain for the HUB Project. Special legal counsel to the
IVDA is hereby authonzed to enter into a confidentiality agreement with such legal counsel to the
Agency in order to preserve the confidential natureo[ attorney-client communication of the IVDA
wi th respect to the cooperation and assistance betWeen the IVDA and the Agency under the
Redevelopment Condemnation Memorandum.
(b) The sum payable by the IVDA as probable compensation for the acquisition of the
Property by eminent domain shall accompany the filing of an application for prejudgment possessIon
of the Property and shall be deposited as follows: (i) with the State of Califomia in the manner
provided by law, or upon the recommendation of specIal legal cOllnselto the IVDA with the County
Treasury; or (ii) at the election of the person(s) who may claim an interest in the Property to be
acquired by such condemnation proceedings, in such other manner as such interested person may
--'
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request in writing, subject to the approval of the Execullve Director and special legal counsel to the
-" IVDA.
Section 10. The Clerk of the Board is hereby authorized and directed to certify the
adoption ofthis Resolution. This Resolution shall take affect upon adoption.
,-,'
582002.10984 I
10
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PAGE 12
A RESOLUTION OF THE INLA.ND V ALLEY DEVELOPMENT AGENCY DECLARING THE
PUBLIC INTEREST AND NECESSITY OF ACQUISITION OF LAND FOR COMMUNITY
REDEVELOPMENT PURPOSES OVER THE PROPERTY Kc'lOWN AS SA.1'.1 BERNARDINO
COUNTY ASSESSOR PARCEL NO 0281-082-057 IN THE REDEVELOPMENT PROJECT
AREA OF THE INLAt'lD VALLEY DEVELOPMENT AGENCY--PATEL, ET AL--(1999
REDEVELOPMENT COOPERATION AGREEMENT FOR THE HUB PROJECT)
PASSED, APPROVED AND ADOPTED t
--
,2002.
Co-Chair
Inland Valley D v
Co-Chair
Inland VaHey Development Agency
Q
lerk of the Board
land Valley Dev opment Agency
I, Penny Chlla, Clerk ofthe Board of the In1lnd Valley Development Agency (IVDA) do
hereby certify that the foregoing Resolution No.~ was duly and regularly passed and adopted
by the IVDA at a regular meeting thereof, held on the '-10 1'1:1ay of ~t-' , 2002, and that the
foregoing is a full, true and correct copy of said Resolution and has t been amended or repealed.
lopment Agency
582002: to91141
11
Exhibit 2
A1~-U'-U4 U~:ib ~U~ijij"lij{
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Apr-Q\-n4 Ol:Z8am From-LEWIS BRISBOIS BISGARD , S~ITH LLP
1018853187
T-IZ3 P 03/15 F-D65
2003
~(Q)[P)W
AMENDMENT NO.1 TO
OWNER PARTICIPATION AGREEMENT
BY AND BETWEEN
REIlEvnOPMENT AGENCY OF THE CITY OF SAN BERNARIlINO
AND
IN-N-OUT BURGERS, A CALIFORNIA CORPORATION
THIS AMENDMENT NO.1 TO OWNER PARTICIPATION AGREEMENT (tbis
uAmendment") is dateO as of Septemlll:r IS, 2003, by Dlld between In-N-OUl Burgcr.I, a
California cotporation ("Owner") and the Redevelopment Agency of the City of San Bemardino,
It body corporate and politic (the "Agency"). The Owner and the Agency have previously
entered into an agreement entitled "Owner Panicipation Agreement", dated as of September 17,
2001, (the "OPA") and the Owner and the Agency believe it is appropriate to approve the
amendments to various prOVIsions of the OPA as set forth below in light of the facts set fonb in
the following recitals:
RECITALS
A. The PartIes have previously initiated the redevelopment of the project described
in the OPA as the "Development".
B. The Agency has preVlously caused the Inland Valley Development Agency (the
"IVDA'1 to initiate condemnation proceedings to complete the acquisition of a portion of die
land described in die OPA as the "Agency Sale Parcel" and such condemnation proceedings have
not been completed as of the date of this Amendment.
C. The Agency has caused a substantial portion of die public sneet improvements
referred to in the OP A as the "Harriman Place Improvement Project" to be designed and installed
and the Agency noW plans to cause the remaining portions of the Harriman Place Improvement
Project to be completed within tile next several months time.
D. The Owner has completed die submission of its written materials in a conneClion
with the Owner's obtaining from the City the appropriate "Land Use Approvals" for the
lmprovements to be constrUcted by the Owner following the "Close of Escrow" as set forth in
the OPA.
E. In order to acconunodate certain changes in the development schedule for tlIe
Harriman Place Improvement Project, the Development and the Improvements which have
1
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909885318/
T-123 P 04/15 F-06\
emerged since the time of approval of the OP A in 200 I, the Parties now believe it is appropriate
to approve this Amendment.
NOW, THEREFORE, FOR GOOD AND VALUABLE CONSIDERATION THE
OWNER AND THE AGENCY HEREBY AGREE AS FOllOWS:
Section I. The text of tbe OPA is hereby incorporated by rhis reference inro this
Amendment. Unless rhe conrext of the usage of a particular rem1, word or phrase used in this
Amendment may otherwise require, the meaning of defined tellDS, words or phrases used in tbis
Amendment shan be the same as the defimtion of such terms, words or phrases lIS used in the
OPA.
Section 2. As of the dare of this Amendment, the Parties mutually declare that no
default exisrs under the OPA or the Escrow as thereby established, and that each remains in full
force and effect.
Section 3. The general form of the Agency Grant Deed as attached as Sxhibit "F" to
the OP A, is hereby substituted with the form of the "HUB Project: Agency Sale Parcel Quitclaim
Deed" as attached to this Amendmenr as Attachment No. 1.
Section 4
Secrion 3.\ l(a) of the OPA is amended to read as follows:
"(a) The Agency Grant Oeed shall be recorded (the "Closing") as soon as
possible after the sanstacrion of all of the Agency's Conditions and the Owner's
Conditions, bur in no e\'entlater than June 3D, 2004 (the "Closioe Date"), as set fonh in
the Schedule of Performance, subjecrtothe extension of the Closing Date punuant to
Section 3.23 or 3.25, below."
Section 5. For the purposes of Section 3.19(a) of the OPA, under this Amendment,
the date of the Owner's "Objection Notice" as this term IS defined in Section 3.19 of the OPA,
shall be deemed to be the later date of either: (i) the date on which the Owner delivers its Owner
Objection Notice to the Agency; or (ii) October 31, 2003.
Section 6. For the purposes of Section 320(a) of the OPA, under this Amendmenr,
the date oftbe Agency's "Objection Notice", as this reml is defined in Section 3.20 of the OPA,
shall be deemed to be the later date of either: (i) the date on which the Agency delivers its
Agency Objection Norice to the Owner; or (ii) October 31, 2003.
Secrion 7. The Owner acknowledges and agrees that the condition ofSeetion 3.28 of
the or A relating to the demolition of SllUC\UreS on and under the Agency Sale Property (e.g., the
"Agency Demolition Work") has already been accomplished by the Agency as of the date of this
Amendment. and that such Agency Demolirion Work is satisfactory to rhe Owner.
2
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Section ll.
Section 4.J(h) of the OPA is hereby amended to read as follows:
'"(b) As set forth in the Schedule of Performance, the Owl1er shall commence
constrUL-non of the Improvements by the later of (i) June 30, 2004, or (ii) the thinieth
(30dl) day following the Closing (in either case, the ''New Restaurant Commencement
Dale"), subject to the provisions of Section 7.5. below. As set forth in the Schedule of
Performance, the Owner shall substantially complete the Improvements within twO
hundred seventy (270) days following the commencement of constrUction, subject to the
provisions of Section 7.5, below. The Schedule of Performance is subject to teVisiOll
from time to time as murually agreed upon in wnting by and between the Owner and the
Agency."
Section 9.
reads as follows:
The OPA is hereby further amended to add a new Section 7.9(c) which
U(c) In addition to the obligations of the Agency which arise under Section
7.9(b)(i), the Agency bo::reby agrees to assume the obligation of the Owner, IlPder City
CUP No. 03-08 Condition No 3, by providing for the defense for only the City, the
Economic Development Agency of the City of San BenliUdino, any departments,
agencies, divisions, boards or commissions of either the City or the Economic
Development Agency, as well as predecessors, successorS, assigns, agents, directors,
elected officials, officers, employees, representatives and auomeys of either the City or
the Economic Development Agency from any claim, action, or proceeding against any of
the foregoing persons or entities. The Owl1er hereby covenants and agrees to cooperate:
with the Agency and the lawyers retained by the Agency for such purposes, in tbe
Agency's defense of any such challenge of City CUP No. 03-08. The Agency is not
assumlllg the defense costs of the Owner in defending itself or any other person, other
than the City and the Economic Development Agency of the City of San Bernardino, as
enumerated previously herein in this section.'"
Section 10. The fonn of the Scbedule of Performance as attached as Exhibit "1"10 the
OPA, is hereby substituted with the "September 2003 Modified Schedule of Perfonnance" as
attached to this Ame:ndnu:nt 8S Anaclunent No.2.
Section 11. Except as modified by this Amendment, all of the other proviSIons of the
OP A remain in full force and effect.
Secrion 12- The acceptance of this Amendment by the Agency is subject to the
approval of the sanle by a majority vote of its governing board. The authorized signatories of the
Parties shall execute tbis Amendment within a reasonable period following such apptoval by the
governing board of tbe Agency, provided that this Agreement may be withdrawn at any time: by
the Owner prior to tbe Owner's execution of this Amendment pursuant to wrinen notice to the
Agency. This Amendment may be executed by the parties in counterpart and when fully
executed eacb counterpart sball be deemed one original instrUment.
3
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8C8S8Sl187
T-I!l P.06/15 F-OS5
IN Wn'N"ESS WHElU:OF, the parties hereto have duly executed this Amendment as of
the date first above wrilten.
AGENCY
Redevelopment Agency of the City of San
Bernardino, a body corporate and politic
BY~?~
(~~) Gary Van Osdel,
V~ Executive DirectOf
APPROVED AS TO FORM:
t~~
Agency Special Counsel
OWNER
In-N-Oul Burgers, a California corporation
4
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-.. .
-....A ..,..-.:p'2QII,1v.......b.JrtOw Of................DOC
OFFICE OF THE CITY CLERK
RACHEL G. CLARK, CM.C. . CITY CLERK
300 North "0" Street. San Bernardino. CA92418-0001
909.384.5002. Fax: 909.384.5158
www.cLsan-bernardino.ca.us
'"
May 18,2004
Mr. Frank Weiser
Attorney At Law
3460 Wilshire Blvd., Suite 903
Los Angeles, CA 90010
Dear Mr. Weiser:
At the meeting of the Mayor and Common Council held on May 17, 2004, the following action
was Iaken relative to the Appeal of the Planning Commission's approval of Conditional Use
Permit No. 04-02, to construct a 3,220 square foot fast-food restaurant with a drive-thru at the
southwest corner of Tippecanoe Avenue and Harriman Place in the CR-3, Commercial
Regional-Tri-City/Club, Land Use District:
That the hearing be closed; the appeal be denied, and that the Planning
Commission's approval of Conditional Use Permit No. 04-02 be upheld, based on
the Findings of Fact contained in the Planning Commission staff report dated April
6,2004, subject to the Conditions of Approval and Standard Requirements.
If we can be of further assistance, please do not hesitate to contact this office.
Sincerely,
~Jul.jj . QlMJu
Rachel G. Clark, CMC k.JJP.L
City Clerk (]
RGC:lls
cc: Development Services
In-N-Out Burgers, 13502 Hamburger Lane, Baldwin Park, CA 91706
CITY OF SAN BERNARDINO
ADOPTED SHARED VALUES: Integrity. Accountability. Respect for Human Dignity. Honesty