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HomeMy WebLinkAboutPC2018-022 - CONDITIONAL USE PERMIT TO AMEND AND SUPERSEDE EXISTING USE PERMIT NO. 3623 - 854 AVOCADO AVENUERESOLUTION NO. PC2018-022 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH, CALIFORNIA, APPROVING CONDITIONAL USE PERMIT NO. UP2018-007, WHICH AMENDS AND SUPERSEDES EXISTING USE PERMIT NO. 3623 FOR AN EXISTING FOOD SERVICE, EATING AND DRINKING ESTABLISHMENT WITH LATE HOURS, A TYPE 47 (ON SALE GENERAL — EATING PLACE) ALCOHOLIC BEVERAGE CONTROL LICENSE AND LIVE ENTERTAINMENT LOCATED AT 854 AVOCADO AVENUE (PA2018-156) THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. An application was filed by Tommy Bahama ("Applicant") with respect to property located at 854 Avocado Avenue, and legally described as Parcel 1 of Parcel Map No. 90-361, in the City of Newport Beach, County of Orange, State of California, as shown on a map filed in Book 270, pages 15 through 18 of Parcel Maps, records of Orange County, California, requesting approval of an amendment to Use Permit No. 3623. 2. The Applicant requests approval of an amendment to a conditional use permit to allow interior and exterior alterations to the existing eating and drinking establishment. Interior alterations include reconfiguring the seating arrangement of the interior dining room and bar area and moving the restrooms and entry area. Exterior alterations include removing the existing front patio, enlarging and providing a trellis patio cover over the rear patio, and exterior fagade improvements. Condition No. 5 of the Use Permit No. 3623 requires the seating arrangement to match the floor plan as approved. The proposed seating plan includes 250 seats where 283 are allowed by the existing approval. No increase to the gross floor area or net public area is proposed and the parking requirement does not change. No changes are proposed to the existing hours of operation, which are 11:00 a.m. to midnight, daily, for the interior of the restaurant, and 11:00 a.m. to 11:00 p.m., daily, for the outdoor patio. The request includes the retention of the existing Type 47 (On Sale General - Eating Place) Alcoholic Beverage Control (ABC) license and the allowance of live entertainment. 3. Use Permit No. 3623 allowing the existing eating and drinking establishment with a Type 47 ABC license and live entertainment was originally approved by the Planning Commission on April 9, 1998. 4. An amendment to Use Permit No. 3623 was approved by the City Council on May 13, 2008, that allowed the addition of a 461 square foot outdoor patio to the existing eating and drinking establishment and limited the allowed number of seats to 283. Planning Commission Resolution No. PC2018-022 Page 2 of 15 5. The subject Property is located within the Newport Village Planned Community (PC -27) Zoning District and the General Plan Land Use Element category is General Commercial (CG). 6. The subject Property is not located within the coastal zone. 7. A public hearing was held on July 19, 2018, in the City Hall Council Chambers, located at 100 Civic Center Drive, Newport Beach, California. A notice of time, place and purpose of the public hearing was given in accordance with the Newport Beach Municipal Code ("NBMC"). Evidence, both written and oral, was presented to, and considered by, the Planning Commission at this public hearing. SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION. This project is exempt from the California Environmental Quality Act (CEQA) pursuant to Section 15301 under Class I (Existing Facilities) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential to have a significant effect on the environment. 2. The Class 1 exemption includes the operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of existing public or private structures, facilities, mechanical equipment, or topographical features, involving negligible or no expansion of use. The proposed project includes interior and exterior alterations to the existing eating and drinking establishment and retail store. No increase of gross floor area, net public area, outdoor patio area, or hours of operation would occur with the approval of the requested second amendment to Use Permit No. 3623. SECTION 3. REQUIRED FINDINGS. In accordance with NBMC Subsection 20.48.030(C)(3) (Alcohol Sales — Required Findings), the following findings and facts in support of such findings are set forth: Finding: A. The use is consistent with the purpose and intent of NBMC Section 20.48.030 (Alcohol Sales) of the Zoning Code. Facts in Support of Finding: In finding that the proposed use is consistent with NBMC Section 20.48.030, the following criteria must be considered: The crime rate in the reporting district and adjacent reporting districts as compared to other areas in the City. The subject property is located in Reporting District 39 (RD 39). In 2017 there were 51 arrests for Part One Crimes (Part One Crimes are the eight most serious crimes Planning Commission Resolution No. PC2018-022 Page 3 of 15 defined by the FBI Uniform Crime Report — homicide, rape, robbery, aggravated assault, burglary, larceny -theft, auto theft, and arson), which is higher than adjacent reporting districts and the Citywide average. Due to the high concentration of commercial land uses in Newport Center and Fashion Island, the crime rate and the shoplifting (burglary/thievery) rate is greater than adjacent residential Reporting Districts; however, the Newport Beach Police Department ("NBPD") does not consider the number significant given the type of development within this RD. 2. The NBPD has reviewed the proposal, provided operating conditions of approval, and has no objection to the proposed tenant improvements and changes to the seating arrangement subject to appropriate conditions of approval. Additionally, because an amendment to the use permit is requested the applicant /operator will be required to obtain an Operator License because the midnight closing hour is after 11:00 p.m. and because alcohol is sold in conjunction with live entertainment. The Operator License provides an additional tool for the NBPD to control the use, especially should objectionable activities occur at the site. ii. The numbers of alcohol-related calls for service, crimes, or arrests in the reporting district and in adjacent reporting districts. Due to the high concentration of commercial land uses in RD 39, the calls for service and number of arrests are greater than adjacent residential Reporting Districts. In 2017, alcohol related arrests made up 18% of the all arrests (70 of 389) in RD 39. The NBPD does not consider the rate high because of the concentration of restaurants and commercial uses within Fashion Island and the surrounding Newport Center area. The NBPD reported the location was the subject of 24 dispatch events in 2017. The NPD determined that no calls were a result of over -service of alcohol or neglect in responsibility by the applicant. iii. The proximity of the establishment to residential zoning districts, day care centers, hospitals, park and recreation facilities, places of worship, schools, other similar uses, and any uses that attract minors. The establishment is located in the Corona del Mar Plaza shopping center, which includes a mix of retail, service and restaurant uses. The nearest residential zoning district is located approximately 300 feet southeasterly of the site across East Coast Highway. Another residential neighborhood, Pointe del Mar, is located approximately 450 feet away across MacArthur Boulevard. 2. The nearest park and recreational facilities, the Civic Green at City Hall and the Civic Center Park, are located approximately 1200 feet to the northwest, and the Central Library is located approximately 800 feet to the northwest. The nearest place of worship, Community Church Congregational, is located approximately 1,700 feet to the south on Heliotrope Avenue. The nearest school, Harbor View Elementary, is located off Goldenrod Avenue approximately 1,500 feet to the southeast. There are no day care centers near the establishment; however, there are several private tutoring centers located in Corona del Mar off East Coast Highway. Planning Commission Resolution No. PC2018-022 Paae 4 of 15 iv. The proximity to other establishments selling alcoholic beverages for either off-site or on- site consumption. There are currently 67 ABC licenses held by 41 establishments in the subject census tract that includes Newport Center and Fashion Island. Other establishment in Corona del Plaza holding ABC licenses are Bristol Farms and Gulfstream. Multiple restaurants within Fashion Island also hold a variety of on- and off -sale licenses which is typical for a regional mall. Additionally, several establishments located across East Coast Highway hold on- and -off sale ABC licenses including Korker Liquor, Ruby's Diner, Rothschild's, The Bungalow, and Avila's EI Ranchito. 2. The per capita ratio of one license for every 13 residents is higher than the adjacent districts in the City and the average ratio for Orange County. This is due to the higher concentration of commercial land uses relative to the low residential population in and around Newport Center and within Fashion Island. Although the area does have a high concentration of alcohol licenses, the proposed change to the allowed seating arrangement will not increase the number of alcohol licenses as Tommy Bahama holds a valid Type 47 ABC license. 3. The existing restaurant has operated here since 1999 in proximity to these other establishments that sell alcohol without contributing to alcohol-related nuisances. The proposed floor plan alterations and operational characteristic are not expected to significantly alter the use to suggest there would be increased alcohol-related nuisances or land use conflicts. v. Whether or not the proposed amendment will resolve any current objectionable conditions. Tommy Bahama opened in 1999. According to the NBPD and Code Enforcement, there is not a pattern of objectionable conditions or behavior occurring at the site. 2. All employees serving alcohol are and will continue to be required to be at least 21 years of age and undergo, and successfully complete, Responsible Beverage Service (RBS) training. 3. Approval of this application will require the operator to obtain an Operator License pursuant to NBMC Chapter 5.25. The Operator License will provide enhanced tools to control noise, loitering, litter, disorderly conduct, parking/circulation and other potential disturbances that could result from the use, and will provide the NBPD with means to modify, suspend, or revoke the operator's ability to maintain late -hour operations. In accordance with Subsection 20.52.020(F) (Findings and Decision), the following findings and facts in support of such findings are set forth: Finding: B. The use is consistent with the General Plan and any applicable specific plan. Planning Commission Resolution No. PC2018-022 Page 5 of 15 Facts in Support of Finding: The property is designated as General Commercial (CG) by the Land Use Element of the General Plan, which is intended to provide for a wide variety of commercial activities oriented primarily to serve citywide or regional needs. 2. The continued operation of the existing eating and drinking establishment with alcoholic beverage service and live entertainment is intended to serve nearby residents, the surrounding community, and visitors to the City. Therefore, the use is consistent with this land use category. 3. The existing establishment has proven complementary to the other retail, service and restaurant uses in the shopping center. 4. The subject property is not part of a specific plan area and the site is not located in the Coastal Zone. C. The use is allowed within the applicable zoning district and complies with all other applicable provisions of the Zoning Code and the Municipal Code. Facts in Support of Finding: The property is located in Area 5 (Retail) of the Newport Village Planned Community District (PC27). This designation is intended to be developed as a specialty retail commercial center and permits a broad range of commercial uses including retail uses, restaurants, and uses which are service in nature. Eating and drinking establishments with alcoholic beverage service and later hours (after 11:00 p.m.) are allowed subject to the approval of conditional use permit. 2. The existing establishment use was originally approved in April 1998 pursuant to Use Permit No. 3623. An amendment to that use permit that allowed the addition of the 461 square foot out outdoor dining patio adjacent to the parking lot was approved in May 2008. This approval included a 283 -seat limit indented to ensure adequate parking for the shopping center remains available. The proposed amendment includes rearrangement of the seating, but complies with the 283 -seat limit and does not intensify the use of the property. 3. The project site includes a 516 -space surface parking lot. PC27 requires a minimum of 4.9 off-street parking spaces for every 1,000 square feet of gross floor area for Area 5 (Corona del Mar Plaza) for all uses, including the existing eating and drinking establishment. No intensification or floor area additions are proposed; therefore, no additional parking is required. Planning Commission Resolution No. PC2018-022 Pa-qe 6 of 15 D. The design, location, size, and operating characteristics of the use are compatible with the allowed uses in the vicinity. Facts in Support of Finding: The proposed establishment within the shopping center is accessible by motorists, pedestrians, and bicyclists from Avocado Avenue and MacArthur Boulevard. 2. The eating and drinking establishment has been operating since 1999 and has proven compatible with the existing and allowed uses in the shopping center and area, which primarily consists of retail and service uses commercial uses. 3. The project includes conditions of approval to ensure that potential conflicts are minimized to the greatest extent possible. The eating and drinking establishment shares an existing trash enclosure directly behind the building that is surrounded by three walls and a self -latching gate. The operator is also required to control trash and litter around the business. 4. The operational -conditions of approval recommended by the NBPD relative to the sale of alcoholic beverages, including an operator license, will help ensure compatibility with the surrounding uses and minimize alcohol-related impacts. The project has been conditioned to ensure the welfare of the surrounding community. Finding: E The site is physically suitable in terms of design, location, shape, size, operating characteristics, and the provision of public and emergency vehicle (e.g., fire and medical) access and public services and utilities. Facts in Support of Finding: The eating and drinking establishment is located within an existing shopping center occupied with a mix of retail and service uses. The site provides vehicle access and parking in addition to pedestrian sidewalks and crosswalks. 2. Adequate public and emergency vehicle access, public services, and utilities are provided to the shopping center and Tommy Bahama. All required utility and building upgrades will be reviewed prior to the issuance of building permits for the remodel and alterations. 3. The design of the tenant improvements will comply with all Building, Public Works, and Fire Codes, and will be approved by the Orange County Health Department. Planning Commission Resolution No. PC2018-022 Paqe 7 of 15 Finding: F. Operation of the use at the location proposed would not be detrimental to the harmonious and orderly growth of the City, or endanger, jeopardize, or otherwise constitute a hazard to the public convenience, health, interest, safety, or general welfare of persons residing or working in the neighborhood of the proposed use. Facts in Support of Finding: The project has been reviewed and includes conditions of approval to ensure that potential conflicts with the surrounding land uses are minimized to the greatest extent possible. The operator is required to take reasonable steps to discourage and correct objectionable conditions that constitute a nuisance in parking areas, sidewalks, and areas surrounding the establishment during business hours, if directly related to the patrons of the establishment. 2. The eating and drinking establishment has been operating with a Type 47 ABC license since 1999. There is no indication that it has been detrimental to the community based upon the Newport Beach Police Department review of records and staffs observation of the use and Corona del Mar Plaza since 1999. 3. The eating and drinking establishment will continue to provide dining with alcohol service, a public convenience to residents, employees, and visitors to the area. 4. The eating and drinking establishment is currently allowed to operate with late hours and live entertainment without the benefit of an operator's license. The conditions of approval and requirement to obtain and operator's license will provide a greater enforcement mechanism should the eating and drinking establishment become a nuisance or operate in a manner detrimental to the surrounding residents and businesses. 5. The proposed alcohol service is provided as a public convenience to establishment patrons. The continued service of alcoholic beverages in addition to live entertainment will provide an economic opportunity to maintain a successful business at this location in a way that best serves the quality of life for the surrounding community. SECTION 4. DECISION. NOW, THEREFORE, BE IT RESOLVED: The Planning Commission of the City of Newport Beach hereby approves Conditional Use Permit No. UP2018-007, subject to the conditions set forth in Exhibit "A", which is attached hereto and incorporated by reference. This approval allows a food service, eating and drinking establishment with late hours and a Type 47 (On Sale General - Eating Place) Alcoholic Beverage Control ("ABC") license with live entertainment located at 854 Avocado Avenue. Planning Commission Resolution No. PC2018-022 Paae 8 of 15 2. This action shall become final and effective fourteen (14) days after the adoption of this Resolution unless within such time an appeal is filed with the City Clerk in accordance with the provisions of Title 20 Planning and Zoning, of the Newport Beach Municipal Code. 3. This Resolution supersedes the approval of Use Permit 3623 (Amended - PA2008-029), which upon vesting of the rights authorized by this application (PA2018-156), shall become null and void. PASSED, APPROVED AND ADOPTED THIS 19th DAY OF JULY 2018. AYES: Dunlap, Kleiman, Koetting, Kramer, Weigand and Zak NOES: ABSTAIN: ABSENT: Lowrey BY: Peter Zak, thak(han BY: Lauren Kleiman, Secretary Planning Commission Resolution No. PC2018-022 Paae 9 of 15 EXHIBIT "A" CONDITIONS OF APPROVAL (Project -specific conditions are in italics) Planning Division The development shall be in substantial conformance with the approved site plan, floor plans and building elevations stamped and dated with the date of this approval. (Except as modified by applicable conditions of approval.) 2. Conditional Use Permit No. UP2018-007 shall expire unless exercised within twenty-four (24) months from the date of approval as specified in Newport Beach Municipal Code ("NBMC") Section 20.54.060, unless an extension is otherwise granted. 3. The project is subject to all applicable City ordinances, policies, and standards, unless specifically waived or modified by the conditions of approval. 4. Applicant shall comply with all federal, state, and local laws. Material violation of any of those laws in connection with the use may be cause for revocation of this Conditional Use Permit. 5. This Conditional Use Permit may be modified or revoked by the City Council or Planning Commission should they determine that the proposed uses or conditions under which it is being operated or maintained is detrimental to the public health, welfare or materially injurious to property or improvements in the vicinity or if the property is operated or maintained so as to constitute a public nuisance. 6. All applicable previous conditions of approval of site Plan Review No. 74 and its accompanying applications shag be fulfilled and remain in force (dated December 29, 1995), except as noted below. 7. Any change in operational characteristics, expansion in area, or other modification to the approved plans, may require an amendment to this Conditional Use Permit or the processing of a new Conditional Use Permit. 8. Should the property or business be sold or otherwise come under different ownership, any future owners or either the current business owner, property owner or the leasing agent shall notify assignees of the conditions of this approval. 9. Prior to the issuance of a building permit, Applicant shall pay any unpaid administrative costs associated with the processing of this application to the Planning Division. 10. A copy of this approval letter shall be incorporated into the Building Division and field sets of plans prior to issuance of the building permits. Planning Commission Resolution No. PC2018-022 Paae 10 of 15 11. Prior to issuance of a building permit, Applicant shall submit to the Planning Division an additional copy of the approved architectural plans for inclusion in the Conditional Use Permit file. The plans shall be identical to those approved by all City departments for building permit issuance. The approved copy shall include architectural sheets only and shall be reduced in size to 11 inches (11 ") by 17 inches (17"). The plans shall accurately depict the elements approved by this Conditional Use Permit and shall highlight the approved elements such that they are readily discernible from other elements of the plans. 12. The eating and drinking establishment is allowed a Type 47 (On Sale General — eating Place) ABC License. The sale of alcohol for off-site consumption is prohibited. 13. The area of the outdoor dining patio shall not exceed 1,461 square feet, as shown on the plans stamped with the date of this approval. 14. The seating arrangement for the restaurant shall be in substantial conformance with the arrangement as shown on the plans stamped with the date of this approval as determined by the Community Development Director. In no case shall the total number of seats in the interior and exterior dining areas of the restaurant exceed 283 seats. 15. The restaurant hours of operation for the interior dining area shall be limited to between 11:00 a. m. and 12:00 midnight, daily, and the outdoor dining patio area shall close at 11:00 p.m., daily. Any increase in the hours of operation shall be subject to the approval an amendment to this Conditional Use Permit. 16. Regular food service from the full lunch and dinner menu shall be made available at all times the facility is open. 17. No dancing shall be permitted in conjunction with the permitted use, unless an amendment to this conditional use permit is first obtained. 18. Live entertainment shall be limited to two performers, and may be amplified, but shall be confined to the interior of the building. Any increase in the number of performers beyond two persons shall require the approval of the Planning Commission. 19. All windows and doors on the southerly and parking lot sides of the building shall be permitted to remain open during the performance of the live entertainment, and windows and doors on the East Coast Highway and westerly sides of the building shall remain closed during the performance of the live entertainment. 20. All speakers located in the outdoor dining patio areas of the restaurant shall be limited to no more than the noise level criteria specified in NBMC Chapter 10.26. Should any music emanating from the outdoor dining patio area speakers or from interior live entertainment be heard at the nearside corner of the intersection of Sea Lane and Harbor View Drive, the speaker volume for the outdoor dining area speakers shall be reduced to eliminate any noise impacts. Planning Commission Resolution No. PC2018-022 Page 11 of 15 21. The speakers located in outdoor dining patio areas shall not be utilized in conjunction with the sound system of the live entertainment or paging of patrons. The outdoor dining area speakers shall be utilized for ambient background music and shall be limited to pre-recorded music only, 22. Upon evidence that noise generated by the project exceeds the noise standards established by NBMC Chapter 10.26 (Community Noise Control), the Community Development Director may require that the applicant or successor retain a qualified engineer specializing in noise/acoustics to monitor the sound generated by the live entertainment and to develop a set of corrective measures necessary in order to insure compliance. 23. The operator of the eating and drinking establishment shall be responsible for the control of noise generated by the subject eating and drinking establishment including,' but not limited to, noise generated by patrons, food service operations, and mechanical equipment. All noise generated by the proposed use shall comply with the provisions of NBMC Chapter 10.26 and other applicable noise control requirements of the NBMC. Pre- recorded music may be played in the tenant space, provided exterior noise levels outlined below are not exceeded. The noise generated by the proposed use shall comply with the provisions of NBMC Chapter 10.26. The maximum noise shall be limited to no more than depicted below for the specified time period unless the ambient noise level is higher: 24. All mechanical equipment shall be screened from view of adjacent properties and adjacent public streets, and shall be sound attenuated in accordance with NBMC Chapter 10.26, Community Noise Control. 25. Roof coverings over the outdoor patio dining areas shall not have the effect of creating a permanent enclosure. 26. The applicant shall ensure that the trash dumpsters and/or receptacles are maintained to control odors. This may include the provision of either fully self-contained dumpsters or periodic steam cleaning of the dumpsters, if deemed necessary by the Planning Division. Cleaning and maintenance of trash dumpsters shall be done in compliance with the provisions of Title 14, including all future amendments (including Water Quality related requirements). Between the hours of 7 a.m. and 10 p.m. Between the hours of 10 p.m. and 7 a.m. interior exterior interior exterior Measured at the property line of commercially zoned property: N/A 65 dBA NIA 60 dBA Measured at the property line of residentially zoned property: N/A 60 dBA N/A 50 dBA Residential property: 45 dBA 55 dBA 40 dBA 50 dBA 24. All mechanical equipment shall be screened from view of adjacent properties and adjacent public streets, and shall be sound attenuated in accordance with NBMC Chapter 10.26, Community Noise Control. 25. Roof coverings over the outdoor patio dining areas shall not have the effect of creating a permanent enclosure. 26. The applicant shall ensure that the trash dumpsters and/or receptacles are maintained to control odors. This may include the provision of either fully self-contained dumpsters or periodic steam cleaning of the dumpsters, if deemed necessary by the Planning Division. Cleaning and maintenance of trash dumpsters shall be done in compliance with the provisions of Title 14, including all future amendments (including Water Quality related requirements). Planning Commission Resolution No. PC2018-022 Page 12 of 15 27. All trash shall be stored within the building or within dumpsters stored in the trash enclosure, or otherwise screened from view of neighboring properties except when placed for pick-up by refuse collection agencies. Trash dumpsters shall be fully enclosed and the top shall remain closed at all times, except when being loaded or while being collected by the refuse collection agency. 28. The exterior of the business shall be maintained free of litter and graffiti at all times. The owner or operator shall provide for daily removal of trash, litter, and debris from the premises and on all abutting sidewalks and parking areas within 20 feet (20') of the Property premises. Graffiti shall be removed within 48 hours of written notice from the City. 29. Storage outside of the building in the front or at the rear of the Property shall be prohibited. 30. All proposed signs shall be in conformance with applicable provisions of NBMC Chapter 20.42 (Signs). 31. No temporary "sandwich" signs, balloons or similar temporary signs shall be permitted, either on-site or off-site, to advertise the proposed food establishment, unless specifically permitted in accordance with the Sign Ordinance of the Municipal Code. Temporary signs shall be prohibited in the public right-of-way, unless otherwise approved by both the Public Works Department and Caltrans in conjunction with the issuance of an encroachment permit or encroachment agreement from each. 32. All lighting shall conform to the standards of NEMC Section 20.30.070 (Outdoor Lighting). The Community Development Director may order the dimming of light sources or other remediation upon finding that the site is excessively illuminated. If outdoor lighting is proposed, Applicant shall submit a photometric survey as part of the plan check to verify illumination complies with the Zoning Code standards. 33. Deliveries and refuse collection for the eating and drinking establishment shall be prohibited between the hours of 10 p.m. and 7 a.m. on weekdays and Saturdays and between the hours of 10 p.m. and 9 a.m. on Sundays and federal holidays; unless otherwise approved by the Community Development Director, and may require an amendment to this Conditional Use Permit. 34. To the fullest extent permitted by law, Applicant shall indemnify, defend and hold harmless City, its City Council, its boards and commissions, officials, officers, employees, and agents from and against any and all claims, demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever which may arise from or in any manner relate (directly or indirectly) to City's approval of the Tommy Bahama CUP including, but not limited to, the Conditional Use Permit No. UP2018-007 (PA2018-156). This indemnification shall include, but not be limited to, damages awarded against the City, if any, costs of suit, attorneys' fees, and other expenses incurred in connection with such claim, action, causes of action, suit or Planning Commission Resolution No. PC2018-022 Paqe 13 of 15 proceeding whether incurred by Applicant, City, and/or the parties initiating or bringing such proceeding. Applicant shall indemnify the City for all of City's costs, attorneys' fees, and damages which City incurs in enforcing the indemnification provisions set forth in this condition. Applicant shall pay to the City upon demand any amount owed to the City pursuant to the indemnification requirements prescribed in this condition. Police Department 35. The approval is only for the establishment of a food service, eating and drinking establishment as defined by Title 20 of the Municipal Code, with the principal purpose for the sale or service of food and beverages with sale and service of alcoholic beverages incidental to the food use. 36. Approval does not permit the premises to operate as a "bar, tavern, cocktail lounge or nightclub" as defined by the Newport Beach Municipal Code. 37. The operator of the establishment shall secure, maintain and abide by an Operator License pursuant to NEMC Chapter 5.25. 38. The Operator License required to be obtained pursuant to NEMC Chapter 5.25, may be subject to additional and/or more restrictive conditions such as a security plan to regulate and control potential late -hour nuisances associated with the operation of the establishment. 39. The applicant shall comply with all federal, state, and local laws, and all conditions of the Alcoholic Beverage License. Material violation of any of those laws or conditions in connection with the use may be cause for revocation of the use permit. 40. All owners, managers and employees selling alcoholic beverages shall undergo and successfully complete a certified training program in responsible methods and skills for selling alcoholic beverages within 60 days of hire. This training must be updated every 3 years regardless of certificate expiration date. The certified program must meet the standards of the California Coordinating Council on Responsible Beverage Service or other certifying/licensing body, which the State may designate. The establishment shall comply with the requirements of this section within 60 days of approval. Records of each owner's, manager's and employee's successful completion of the required certified training program shall be maintained on the premises and shall be presented upon request by a representative of the City of Newport Beach. 41. Strict adherence to maximum occupancy limits is required. Permittee must be able to produce an occupancy count for the restaurant area upon request. 42. Management shall maintain an operational log of daily activities related to the sale and service of alcoholic beverages, as well as any additional security actions. Management shall make this log available to the Police Department upon request. Planning Commission Resolution No. PC2018-022 Pacie 14 of 15 43. There shall be no exterior advertising or signs of any kind or type, including advertising directed to the exterior from within, promoting or indicating the availability of alcoholic beverages. Interior displays of alcoholic beverages or signs that are clearly visible to the exterior shall constitute a violation of this condition. 44. No alcoholic beverages shall be consumed on any property adjacent to the licensed premises under the control of the licensee. 45. No "happy hour" type of reduced priced beverage promotion shall be allowed. 46. No off -sales of alcohol shall be permitted. 47. Service of alcoholic beverages on the patio shall be restricted to waiter/waitress service and only to patrons seated at a table. 48. The quarterly gross sales of alcoholic beverages shall not exceed the gross sales of food during the same period. The licensee shall at all times maintain records, which reflect separately the gross sales of food and the gross sales of alcoholic beverages of the licensed business. These records shall be kept no less frequently than on a quarterly basis and shall be made available to the Police Department on demand. 49. Security personnel with guard cards must be present when live entertainment is being conducted. 50. The permittee must submit a security plan to the Police Department for approval and implement the approved plan. The Police Department shall be notified of any changes to the approved plan. 51. The permittee shall maintain a security recording system with a 30 -day retention and make those recordings available to police upon request. 52. "VIP" passes or other passes to enter the establishment, as well as door charges, cover charges, or any other form of admission charge, including minimum drink order of the sale of drinks is prohibited (excluding charges for prix fixe meals). 53. There shall be no on-site radio, televisions, video, film, or other electronic media broadcasts, including recordings to be broadcasted later, which include the service of alcoholic beverages, without first obtaining an approved Special Event Permit issued by the City. 54. All exits shall remain free of obstructions and available for ingress and egress at all times. 55. The applicant is required to obtain all applicable permits from the City Building and Fire Departments. The construction plans must comply with the most recent, City -adopted Planning Commission Resolution No. PC2018-022 Page 15 of 15 version of the California Building Code. The construction plans must meet all applicable State Disabilities Access requirements. Approval from the Orange County Health Department is required prior to the issuance of a building permit. 56. A covered wash-out area for refuse containers and kitchen equipment shall be provided and maintained, and the area drain directly into the sewer system, unless otherwise approved by the Building Director and Public Works Director in conjunction with the approval of an alternative drainage plan. Washing of refuse containers or restaurant equipment shall be prohibited in the parking lot. 57. Strict adherence to maximum occupancy limits is required. 58. The project will comply with the provisions of NBMC Chapter 14.30 for commercial kitchen grease disposal. Fire Department 59. Portable propane heaters are not allowed on the outdoor patio dining areas. Any heating units shall be installed under permit in accordance with applicable the California Building Code (CBC) requirements.