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CITY OF SAN BERNARDINO - REOUEST FOR COUNCIL ACTION
From: Valerie C. Ross, Director
Subject: Resolution authorizing execution
of a License and Agreement with American
Sports University for encroachment of six
(6) overhanging canopies for outdoor dining
at 360 W. Court Street.
Dept: Development Services
Date: December 27, 2007
MCC Date: January 22, 2008
Synopsis of Previous Council Action:
None
Recommended Motion:
Adopt Resolution.
~tluUJ U. ~
Valerie C. Ross
Contact person: Robert Eisenbeisz, Acting City Engineer
Phone: 3305
Staff Report, Resolution
Supporting data attached: and AlD'eement Ward:
FUNDING REQUIREMENTS: Amount: None
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Source: (Acct. No.)
(AI'M n,:lCll"rip+inn)
Finance: .
Council Notes:
Agenda Item No. ~
I { ~ I D?
CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
Staff Report
C Subject:
Resolution authorizing execution of a License and Agreement with American Sports University
for encroachment of six (6) overhanging canopies for outdoor dining at 360 W. Court Street.
Background:
lung Hee Hwang has submitted a letter dated December 14, 2007, requesting permission to
install six (6) fabric canopies with supporting metal frames over the public right of way at 360
West Court Street.
The canopies are proposed to extend a maximum of 6 feet from the face of the building wall and
will have a minimum clearance of 8 feet above the public sidewalk. All six canopies will be dark
red with no lettering and the applicant is required to maintain them in good condition at all times.
Outdoor dining will be established under the canopies, subject to the requirement that the
applicant maintain a 4- foot clear width for pedestrian access along the public sidewalk.
Staff has field reviewed the site and determined that the overhanging canopies and outdoor
dining will have minimal impact on use of the sidewalk. The clear width of the sidewalk at the
location is approximately 12 feet; therefore, adequate clearance for accessibility can be
maintained. Planning staff believes the canopies will enhance the facade of the building and
outdoor dining is consistent with the General Plan.
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The applicant will be required to execute the attached License and Agreement and post the
required insurance prior to installation of the canopies. The License and Agreement provides
that the applicant shall maintain the canopies in good condition and pay an encroachment fee to
the City of$150 per year.
A separate construction permit from the Building Division will be required prior to start of work
on the project. The applicant will be responsible for obtaining all necessary permits from other
agencies necessary to complete this work.
The applicant has paid the prescribed fee of $625.00 to cover administrative processing costs of
this License and Agreement.
Financial Impact:
None.
Recommendation:
Adopt resolution.
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Attachments:
Letter dated December 14,2007 requesting Encroachment Permit.
Exhibit "A" - License and Agreement
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11127120072:09 PM
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RESOLUTION NO.
RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING AND
3 DIRECTING EXECUTION OF A LICENSE AND AGREEMENT WITH AMERICAN
SPORTS UNIVERSITY FOR ENCROACHMENT OF SIX (6) OVERHANGING
4 CANOPIES FOR OUTDOOR DINING AT 360 W. COURT STREET, SAN
5 BERNARDINO, CA 92401.
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BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO AS FOLLOWS:
SECTION 1. That the Mayor and Common Council of the City of San Bernardino
hereby approves a License and Agreement with American Sports University for encroachment of
six (6) overhanging canopies for outdoor dining at 360 W. Court Street, San Bernardino, CA
92401.
SECTION 2. That the City Manager is hereby authorized to execute on behalf of the
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City the License and Agreement between the City of San Bernardino and American Sports
15 University, a copy of which is attached hereto and incorporated herein as Exhibit "A".
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SECTION 3. The authorization to execute the above referenced license and agreement is
rescinded if the parties fail to execute it within sixty (60) days of the passage of this Resolution.
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If
Ana..d"O .,nn,
1 RESOLUTION.... AUTHORIZING AND DIRECTING EXECUTION OF A LICENSE
2 AND AGREEMENT WITH AMERICAN SPORTS UNIVERSITY FOR
ENCROACHMENT OF SIX (6) OVERHANGING CANOPIES FOR OUTDOOR DINING
3 AT 360 W. COURT STREET, SAN BERNARDINO, CA 92401.
4
5 I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor and
6 Common Council of the City of San Bernardino at a
meeting thereof
7 held on the
8
day of
, 2008, by the following vote, to wit:
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20
City Clerk
21 The foregoing resolution is hereby approved this
day of
,2008.
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24
Patrick J. Morris, Mayor
City of San Bernardino
25 Approved as to form:
26 JAMES F. PENMAN
:~~
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EXHIBIT "A"
LICENSE AND AGREEMENT
THIS LICENSE AND AGREEMENT is made and entered into this
day of
, 2008, by and between AMERICAN
SPORTS UNIVERSITY, a California corporation, hereinafter referred to as "Licensee,"
and the CITY OF SAN BERNARDINO, a municipal corporation hereafter referred to as
"City."
WITNESSETH:
For and in consideration of the mutual promises and covenants herein
contained, the parties hereto do hereby agree as follows:
I. City hereby gives permission, removable and terminable as hereinafter
provided, to Licensee for encroachment of six (6) overhanging canopies for outdoor
dining at 360 W. Court Street, San Bernardino, CA 92401 indicated schematically in
Attachment "I ", and in accordance with that letter, dated December 14, 2007, from
Licensee (Attachment "2"), both attached and made a part hereof, and subject to any
requirements or conditions as may be imposed by the Director of Development Services
of City.
2. Use of the area for outdoor dining shall be subject to the requirement that
the applicant maintain a minimum width of 4-feet for passage of pedestrians along the
public sidewalk, said 4-foot width being clear of obstructions and tree grates. The sale or
consumption of alcoholic beverages shall not be allowed in the public right-of-way.
3. This permission is given to Licensee as an accommodation to Licensee
and shall be subject to the payment of an annual license fee of $150.00. The first
I of?
EXHIBIT "A"
payment shall be due upon execution of this License and Agreement. Subsequent
payments shall come due on the first day of January of each subsequent year.
4. Licensee hereby acknowledges the title and paramount interest of City to
the public right-of-way and agrees never to assail or resist said title or interest and to
observe present or future set-back requirements relating thereto while this Agreement is
in force and effect.
S. City and Licensee each reserves the right to terminate this License and
Agreement at any time for any reason by giving Licensee at least thirty (30) days written
notice of such termination, except that City may, at its election, terminate said permission
forthwith at any time if Licensee shall fail to comply with any of the provisions of this
Agreement. Waiver by the City of any breach of any term or provision herein shall not
be deemed a waiver of any subsequent breach of the same or any other term or provision
of this Agreement.
6. Licensee agrees to install, use and maintain said encroachment as required
by this Agreement. Said encroachment shall be maintained at all times in a safe, neat,
sightly and good physical condition. City shall be the sole judge of the quality of
miuntenance, and upon written notice by City, through its Director of Development
Services, stating in general terms how and in what manner the maintenance is required,
Licensee shall be required to perform such required maintenance. If Licensee fails to do
so, then City shall have the right to perform this maintenance, the cost of which shall be
borne by Licensee, or alternatively, City may, at its election, terminate this Agreement.
Licensee further agrees to install, use and maintain said encroachment in conformity with
applicable Federal, State, and local laws, rules and regulations. Licensee shall, at its own
20f7
EXHIBIT" A"
responsibility and expense, obtain and keep in effect all licenses, bonds and permits
necessary for the installation and existence of said encroachment.
7. Upon termination of this Agreement, Licensee agrees to immediately
remove said encroachment from the public right-of-way and to restore the public right-of-
way to the satisfaction of the Director of Development Services. If Licensee fails to
exercise its duties under this paragraph, City shall have the right to remove said
encroachment and to restore the premises at no cost or liability to the City. Licensee
covenants and agrees to reimburse City for such cost of removal and/or restoration.
8. City shall in no way be responsible for any loss or damage caused by said
encroachment or for any property belonging to or leased by Licensee, its officers,
servants, agents or employees, that may be stolen, destroyed or in any way damaged
during the installation, use or maintenance of said encroachment.
9. Licensee shall exercise its privileges under this license at its own risk.
Licensee shall indemnify, defend and hold harmless City, its elective and appointive
boards, commissions, officers, agents and employees from any costs, claims, damages,
injuries, and liability resulting from, arising out of, or in any way connected with, the
City's approval of this License and Agreement, or the construction, installation, use or
maintenance of said encroachment, the occupation or use of the public areas of said
encroachment, both during and after the installation thereof, and including but not limited
to any costs, claims, damages, injuries, and liability resulting from the conduct of
Licensee or the employees, invitees, guests or agents of Licensee related to said
encroachment.
10. The Licensee's attention is directed to Section 7-3, "Liability Insurance",
of the Standard Specifications for Public Works Construction, 2006 Edition, providing
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EXHIBIT "A"
that the Licensee shall furnish the City with policies or certificates of liability insurance
prior to execution of this Agreement. AU of the Insurance Policies shall name the City
of San Bernardino as an additionally insured. The endorsement shall be provided by
the agent of the insurance company and shall be notarized to that affect. ACCORD
Forms are not acceptable nor forms signed by the broker, unless they have Power of
Attorney to bind the insurance provider. Licensee shall maintain minimum limits of
insurance no less than:
A) General Liability: $1,000,000.00 per occurrence and $2,000,000
aggregate for bodily injury, personal injury and property damage. Commercial
General Liability Insurance or other form with a general aggregate limit shall
apply separately to this projectJIocation.
B) Products/Completed Operations: $1,000,000.00 per occurrence and
$2,000,000.00 aggregate.
C) Automobile Liability: $1,000,000.00 per accident for bodily injury and
property damage.
D) Employer's Liability: $1,000,000.00 per accident for bodily Injury or
illness.
E) The Licensee's attention is directed to Section 7-4, "Worker's
Compensation Insurance", of Standard Specifications for Public Works
Construction, 2006 Edition, providing that the Licensee shall file a signed
certification Certificate of Worker's Compensation Insurance before start of work
under the terms of this Agreement.
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EXHIBIT "A"
F) The above-referenced Insurance Policies shall remain in effect during the
entire term of this Agreement, and shall not be materially altered or canceled until
after Licensee has provided thirty (30) days written notice to the City.
II. This license is personal to Licensee. It is nonassignable, except with the
prior written consent of the City, and any attempt to assign this license without such
consent will terminate the license privileges granted to Licensee under this Agreement.
The City shall not unreasonably withhold consent. A reorganization of the Licensee's
business entity form, or a transfer of less than one-half of the assets of Licensee, shall not
be deemed an assignment for the purposes of this license if the resulting or successor
entity shall as a matter of law be liable for Licensee's accrued and future obligations
under this Agreement. Licensee shall be entitled to transfer this license to a purchaser of
more than one-half of Licensee's interest provided that the purchaser shall be bound by
Licensee's accrued and future obligations under this License.
12. Licensee agrees that should any action, whether real or asserted, at law or
in equity, arise out of the terms of this Agreement, or by Licensee's operations on the
premises, venue for that action shall lie in San Bernardino County, California.
13. Licensee hereby certifies that it will not discriminate against any employee
or applicant for employment because of race, color, religion, sex, marital status, national
origin, disability, or any other category prohibited by law. Licensee's hiring practices and
employee policies shall comply with all applicable Federal, State and local laws. Such
action shall include, but not be limited to, the following: recruitment and recruitment
advertising, employment, upgrading and promotion.
14. The prevailing party in any legal action to enforce or interpret any
provision(s) of this Agreement shall be entitled to recover from the losing party all
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EXHIBIT "A"
attorney's fees, court costs and necessary disbursements in connection with that action.
Tbe costs, salary and expenses of the City Attorney and members of his office in
connection with that action, shall be considered as attorney's fees for the purposes of this
Agreement.
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EXHIBIT" A"
LICENSE AND AGREEMENT for encroachment of SIX (6) overhanging
canopies at 360 W. Court Street, San Bernardino, CA 92401.
15. All official notices relative to this Agreement shall be in writing and
addressed to the following representatives of Licensee and City:
Licensee
City
Mr. Jung Hee Hwang, D.B.A.
American Sports University
399 West Court Street
San Bernardino, CA 92401
Ph. (909) 889-5555
Fax. (909) 889-3855
Ms. Valerie C. Ross, Director
Development Services Department
City of San Bernardino
300 North "D" Street
San Bernardino, CA 92418
Ph: (909) 384-5357
Fax: (909) 384-5155
IN WITNESS, the parties have executed this Agreement on date first written above.
CITY OF SAN BERNARDlNO
AMERICAN SPORTS UNIVERSITY
Fred Wilson, City Manager
Jung Hee Hwang, Principal
Approved as to form:
James F. Penman
City Attorney
BY~~
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ATTACHMENT "I"
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AFFORDAB! E AWNINGS COMPANY
of c. \UFORNIA. Inc.
402 Prinucl.md Court. Units 2.3
C"'''''iI, CA 92879
Ph. (951) 372 'J :;:1. Fill< (951) ~172.'): i')
lic~II." # 014002
A TT ACHMENT "1"
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AFFORDM~tE AWNINGS COMPANY
or ,..wFORNIA. Inc.
402 I'rillceland Court. Units 2.3
lorona, CA 92879
Ph. (951) 3-;~'.')400' Fax (%1\ :\72-')0199
L,.:en-;e j/ 81400Z
ATTACHMENT "1"
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AITACHMENT "2"
AMERICAN SPORTS UNIVERSITY
399fJOrth .0' 5t
San Berrardiro,
CA 9240~
(909) 889 - 5555
(909) 889 - 3855
www,amer1cansportsunivers;ty_com
info ::americansportsuni'lers'ty COlT.
December 14, 2007
City of San Bernardino
300 N D Street
San Bernardino, CA 92418
Re: Request for Encroachment Permit
360 West Court Street, San Bernardino, CA
To Whom It May Concern:
1 am writing this letter to request an encroachment permit for the International
Sports Dining located on West Court Street between North "D" Street and Arrowhead
Ave.
If you can expedite the processing of the permit, I'd greatly appreciate it. Thank
you very much and if you have any questions, please feel free to contact me an}time. I
can be reached at (213) 321-8900.
Sincerely,
/_-z
'___---Jting Hee Hwang
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