HomeMy WebLinkAboutFury Rok & Rol Sushi Lounge revocationCITY OF NEWPORT BEACH
PLANNING COMMISSION STAFF REPORT
July 17, 2008 Meeting
Agenda Item No. 3
SUBJECT: Revocation of Use Permit Nos. 3162 and 2005 -018 (PA2005 -087)
Fury Rok & Rol Sushi Lounge
4221 Dolphin Striker Way
APPLICANT: City of Newport Beach
CONTACT: Rosalinh M. Ung, Associate Planner
(949) 644 - 3208, rung @city.newport- beach.ca.us
On June 24, City Council entered into a settlement agreement (Exhibit 1) with the
property owner and operators of Fury Rok and Rol Sushi Lounge and approved Use
Permit No. 2008 -043, to allow the operation of a restaurant with the sales of alcoholic
beverages and live entertainment and dancing as accessory uses. The approval of Use
Permit No. 2008 -043 rescinds and supersedes Use Permit Nos. 3162 and 2005 -018. As
a result, the revocation of these use permits is no longer necessary. Staff recommends
that this item be removed from the Planning Commission agenda.
h Ung David Lepo
to Planner Planning Director
Exhibit 1 Settlement Agreement
EXHIBIT 1
SETTLEMENT
AGREEMENT
SETTLEMENT AND RELEASE AGREEMENT
This S ttlement and Release Agreement (hereinafter referred to as "Agreement')
dated this � day of June 2008 ( "Effective Date") is entered into by and between
Fury, LLC, a California limited liability corporation doing business as Fury Rok & Rol
Sushi Lounge, Fury Management, Inc., a California corporation, David Gonzales, an
individual, Brian Schillizzi, an individual, (collectively "Fury") and Ridgeway of Whitney,
a California general partnership, Tod Ridgeway, an individual (hereinafter collectively
referred to herein as "Ridgeway "), and the City of Newport Beach, a charter city and
municipal corporation (hereinafter "City ") (hereinafter Fury and Ridgeway shall be
referred to as "Claimants" and Claimants and City will be collectively referred to as the
"Parties "). This Agreement is entered into with reference to the following Recitals which
Parties agree are accurate to the best of their knowledge or belief:
RECITALS
A. In 1973, the property located at 4221 Dolphin Striker Way, Newport
Beach, California ('Property") was developed as an El Torito Restaurant, prior to the
need to obtain a use permit. The Property is owned by Ridgeway of Whitney, a
California general partnership.
B. On October 24, 1985, the Planning Commission considered and approved
Use Pen-nit No. 3162 when the existing restaurant expanded dining and drinking to a
patio existing on the Property at the time.
C. On July 7, 2005, the City approved an amendment to Use Permit No.
3162 as Use Permit No. 2005 -018 (PA2005 -087). Hereinafter, Use Permit No. 3162 as
amended by Use Permit No. 2005 -018 will be collectively referred to herein as (the "Use
Permit ").
D. On or about June 22, 2007, Fury Rok & Rol Sushi Lounge opened for
business at the Property. The operators of Fury Rok & Rol Sushi Lounge are Brian
Schillizzi and David Gonzales and the business is owned by Fury, LLC, whose sole
member is Fury Management, Inc.
E. On or about January 4, 2008, the Planning Director for the City of Newport
Beach determined that there were reasonable grounds for revocation of the Use Permit
based on violations of the conditions of approval.
F. On January 17, 2008, the Planning Commission held a hearing to set a
date to consider whether the Use Permit should be revoked. At the conclusion of the
hearing, the Planning Commission determined that said hearing should occur on
February 21, 2008.
G. On February 20, 2008, Fury submitted a claim alleging, among other
things, that they had sustained damages as a result of the City's violation of Claimants`
rights under the United States Constitution, the California Constitution, federal law, state
law and common law and identifying Ridgeway as the owner of the Property ("Tort
Claim "). A copy of the Tort Claim is attached hereto as Exhibit 1 and incorporated
herein by this reference.
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H. On February 21, 2008, the Planning Commission held a hearing to
consider the revocation of the Use Permit. At the conclusion of the hearing, the
Planning Commission determined that a hearing officer should take evidence and
submit proposed findings and recommendations for consideration by the Planning
Commission.
I. On or about April 30, 2008, the hearing officer submitted proposed
findings and recommendations (hereinafter ( "Hearing Officer Findings ") that
recommended revocation of the Use Permit.
J. A dispute has arisen between Claimants and City stemming from the
investigation of whether the terms of the Use Permit were violated and the actions taken
by the City to revoke the Use Permit. Specifically, the City contends that Fury has
breached the terms of the Use Permit by operating the Fury Rok & Rol Sushi Lounge in
violation of the terms of approval and conditions of the Use Permit.
K. Claimants deny each and every allegation of the City and contend that the
City has, among other things, abused its discretion, acted in an unlawful manner and
violated their rights guaranteed by the United States Constitution, the California
Constitution, 42 United States Code Section 1983 along with other laws, statutes, rules
and regulations. Claimants contend that the actions of the City and its elected and
appointed officials, commissions, employees and attorneys resulted in Claimants
suffering approximately $50,000,000 in damages as a result of, among other things,
their loss of goodwill; loss of past, present and future profits and revenues; loss of the
value of the lease; loss of past, current, future, and subsequent business and
patronage; and emotional distress. The City denies each of these allegations.
Hereinafter the dispute between the Claimants and the City which is referenced in
Recitals above shall be referred to as the "Dispute ".
L. The Parties desire to resolve all of the issues raised in the Dispute and
Tort Claim and enter into this Agreement, to FINALLY, FULLY, COMPREHENSIVELY
and CONCLUSIVELY settle the Dispute and the Tort Claim, so as to allow the Parties to
continue their pursuits having fully, finally, comprehensively and conclusively resolved
the Dispute and the Tort Claim, as well as all underlying contentions and allegations.
M. Upon execution, City Council approval in accordance with law, and
performance of the conditions as set forth in this Agreement, the Parties intend to agree
that all Parties to this Agreement will be released from any and all Claims, defined
below, arising out of the facts that gave rise to the Dispute and the Tort Claim.
NOW THEREFORE, in consideration of the above Recitals, covenants and
agreements contained herein, the Parties hereto agree as follows:
1. DEFINITIONS. As used herein, the term "Claims" means all claims,
charges, liabilities, damages, obligations, costs, expenses (including without limitation
attomeys' fees), rights of action and causes of action of any kind, legal or equitable,
whether known or unknown, anticipated or unanticipated, past, present or future,
contingent or fixed, existing, claimed to exist or which may hereafter exist under the
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United States Constitution, the California Constitution, applicable common law, contract,
tort or other federal, state, local, or municipal law or regulation, relating in any way to
the facts and circumstances that gave rise to the Dispute and the Tort Claim, whether
said facts and circumstances occurred prior to or after the filing of the Tort Claim.
2. REPRESENTATIONS AND WARRANTIES.
A. The Claimants hereby represent and warrant as a material term of
this AGREEMENT that:
i) Claimants have not heretofore assigned, transferred,
released or granted, or purported to assign, transfer, release or grant, any Claims
disposed of by this Agreement.
ii) None of the Claims released by Claimants hereunder will in
the future be assigned, conveyed, or transferred in any fashion to any other person
and /or entity.
iii) Claimants are the only persons or entities that have any real
property interest in the Property.
iv) Claimants are the only persons or entities that have any
Claim against the City, its elected and appointed officials, boards, commissions,
officers, agents, attorneys, representatives and employees arising or relating in any way
to the facts and circumstances which gave rise to the Dispute and Tort Claim.
B. The Claimants hereby agree that they shall indemnify and defend
and hold the City and its elected and appointed officials, boards, commissions, officers,
agents, attorneys, representatives, and employees, harmless from any and all liability,
loss, expense, damage, or claims which may arise directly or indirectly from or in
connection with any allegation that the warranties and representations made in this
paragraph are false and /or for the breach of any of the terms and conditions of this
paragraph.
C. Nothing herein shall be deemed as a waiver or release of the
warranties, representations, rights and obligations as set forth in this section.
3. TERMS OF SETTLEMENT.
A. City Obligations
i) Nothing in this Agreement is intended to or shall have the
lawful effect of contracting away the City's zoning authority or any other aspect of the
City's police power. City Staff and the City Council have previously reviewed the terms
and conditions of the Use Permit, and have preliminarily concluded that pursuant to the
City Municipal Code, City Staff may lawfully present to the City Council for approval or
disapproval, subject to a duly noticed hearing, a new use permit ( "Use Permit 2008-
122") which rescinds and supersedes the existing Use Permit as set forth in Exhibit 2
which is attached hereto and incorporated by this reference (hereinafter "New Use
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Permit "). City Staff has further preliminarily concluded that no further CEQA analysis
shall be required to be completed prior to the City approving the New Use Permit.
ii) The City Council shall schedule a public hearing on the New
Use Permit. If the Council approves the New Use Permit this Agreement shall become
effective as of the date of City Council approval. If the City Council fails to approve the
New Use Permit, then Claimants may, at their sole and absolute discretion, provide to
City written notice to terminate this Agreement within seven (7) calendar days of the
decision, at which time this Agreement shall be of no further force or effect.
iii) City shall not charge Claimants any fees, charges or costs in
connection with City's review and approval or disapproval of the New Use Permit, as
required by 3(A)(1) above and, at City's sole and absolute discretion, City shall timely file
a Notice of Determination, Notice of Exemption, or other appropriate CEQA notice if the
New Use Permit is approved.
iv) Fury represents that it has pending an assignment to a third
party qualifying under section 3(B)(iii) below. The City has agreed to accept
applications from such third party upon written authority of Claimants and to process
applications for the following: demolition and /or building permits, dance permit,
entertainment permit, or valet and security plan approvals.
v) Upon receipt of completed applications for any of the above
referenced approvals, City agrees to process the approvals concurrently with the
process of approval of the New Use Permit under this Agreement. Any pending
approvals of any such permit shall not become effective until after the Effective Date of
this Agreement. Any such third parties shall not be deemed a third party beneficiary of
this Agreement.
B. Claimants' Obligations
i) Claimants and each of Claimants' agents shall not oppose the
City's approval of the New Use Permit and shall support, both verbally and in writing, if
requested by the City, the City's approval of the New Use Permit ( "Support Covenant ").
ii) Claimants shall not file any lawsuits, administrative appeals
pursuant to the City's Municipal Code, or take any other action whatsoever, in whatever
shape or form, to challenge, appeal, or otherwise seek to influence in any respect,
approval of the New Use Permit, with the sole exception of the Support Covenant as set
forth in the immediate preceding paragraph, 313(i). The provisions of Newport Beach
Municipal Code Section 1.07.030 shall be applicable to City Council approval of the
New Use Permit under the terms of this Agreement.
iii) Fury affirmatively represents that they have ceased
operation of any business at the Property and shall not operate any business at the
Property under the Use Permit or the New Use Permit. Fury, however, may sell, assign
or transfer their interests in the Use Permit, the New Use Permit and/or the Property to
a third party in accordance with the provisions of this Agreement, provided that the
transaction is an arms length transaction and none of Fury Claimants, their members, or
individuals that have any past, present or future interest in Fury, LLC or Fury
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Management, Inc. have any interest in the Property or any future business operated
from the Property.
iv) Claimants agree to reimburse City its costs of proceeding
with revocation hearings for the Use Permit. The amount of $43,366 (Forty Three
Thousand Three Hundred Sixty Six Dollars and No Cents)shall be paid by Claimants to
the City by July 7, 2008 or out of the escrow for the sale Fury's interest in the New Use
Permit and business operation, whichever occurs first.
v) Ridgeway shall require any future lessee or business
operating pursuant to the New Use Permit to operate in full compliance with all
conditions of approval of the New Use Permit and shall include a provision in any lease
that the lessee and any sublessee shall comply with all provisions of the New Use
Permit and any amendments thereto.
C. General Obligations of All Parties
The Parties will use their best efforts and cooperate as necessary
in performing and implementing this Agreement.
4. GENERAL RELEASE.
A. General Release and Discharge of Claims Upon the Effective
Date of this Agreement, Claimants, and each of them, for themselves and all of their
predecessors, successors, assigns, representatives, attorneys, employees, officers, and
agents, do hereby fully and forever release and discharge the City, and all of its
predecessors, successors, assigns, representatives, attorneys, agents, elective and
appointive council members, councils, boards, commissions, commissioners, officers,
employees including, but not limited to, each of the persons named in Exhibit 3
(hereinafter collectively all persons and entities will be referred to as "Released
Persons "), which is incorporated herein by this reference, of and from any and all
actions, Claims, demands, rights, damages, costs, litigation expenses, attorneys fees,
expert fees, consultant fees, other fees, interest, lost profits and earnings, diminution in
the value of the business, loss of past, current, future and subsequent business and
patronage, the value of the leasehold interest, the loss of goodwill, any inverse
condemnation claims, any claims for the taking of property, any other damages, costs or
expenses arising from any and all actions of the Released Persons and compensation
of any nature whatsoever, which Claimants have or may hereafter accrue, including
without limitation, any and all known and unknown, foreseen and unforeseen claim,
damage and injury, relating to, or in any way, directly or indirectly, involving or arising
out of any facts or circumstances related to the Use Permit, the New Use Permit, the
Property, the Tort Claim, the Hearing Officer's Findings and /or the Dispute.
B. Waiver of Claims It is the intention of the Claimants, in executing
this Agreement and receiving the consideration recited herein, that this Agreement is
effective as a full and final accord and satisfaction and general release of all Claims,
debts, damages, liabilities, demands, obligations, costs, expenses, disputes, actions or
causes of action, that Claimant may have against the Released Persons by reason of
any acts, circumstances or transactions relating in any way to the Use Permit, the
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Property, the Tort Claim or Dispute and occurring before the date of this Agreement. In
furtherance of this intention, the Parties hereby acknowledge that they are familiar with
California Civil Code section 1542 and that they hereby expressly waive the protection
of that section, which provides as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT
TO EXIST IN HIS OR HER FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM
OR HER MUST HAVE MATERIALLY AFFECTED HIS OR
HER SETTLEMENT WITH THE DEBTOR.
The Claimants each waive and relinquish any right or benefit that they have or
may have under California Civil Code section 1542. That is, the Claimants shall not
invoke the benefits of California Civil Code section 1542, or any such similar law, to
prosecute any Claims released hereunder. In connection with such waiver and
agreement, each of the Claimants acknowledges that they are aware that they or their
attorney may hereafter discover Claims or facts or legal theories in addition to or
different from those which they know or believe to exist with respect to the Use Permit,
Property, Tort Claim or Dispute, but that it is the intention hereby to fully, finally, and
forever settle and release all of the Claims, known or unknown, suspected or
unsuspected, which do now exist, may exist, or heretofore have existed by reason of
any acts, circumstances, facts, events, or transactions relating in any way to the Use
Permit, the Property, the Tort Claim, the Hearing Officer's findings or the Dispute and
occurring before the date of this Agreement. It is expressly acknowledged and
understood by the Parties to this Agreement that the Parties separately bargained for
the foregoing waiver of the provisions of section 1542 of the California Civil Code. The
Claimants consent that this release and this release shall be given full force and effect
in accordance with each and all of the express terms and provisions, including those
terms and provisions related to such unknown and unsuspected claims, demands, and
causes of action relating in any way to or arising out of the Tort Claim or Dispute.
C. Representations and Warranties. Each Party represents and
warrants to the other that, except as otherwise expressly provided in this Agreement,
they are not relying on any representation whatsoever, whether express or implied,
including without limitation, representations of fact or opinion made by or on behalf of
the Parties herein.
5. MISCELLANEOUS PROVISIONS.
A. This Agreement shall be governed and interpreted in accordance
with the laws of the State of California. Each party hereto agrees that the laws of the
State of California shall apply and that any action brought hereunder shall be subject to
the laws and statutes of the State of California. The Parties expressly agree that any
disputes, disagreements or actions shall be venued with the Superior Court of Orange
County, State of California. The Parties stipulate that they are subject to the jurisdiction
of the Orange Superior Court and hereby expressly waive any defense to assertion of
jurisdiction by that court in such an action.
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B. Integrated Agreement. This Agreement contains the entire
understanding and agreement between the Parties, and the terms and conditions
contained herein shall inure to the benefit of, and be binding upon, the heirs,
representatives, successors and assigns of each of the Parties hereto. No other
representations, covenants, undertakings, or other prior or contemporaneous
agreements, oral or written, respecting such matters, which are not specifically
incorporated herein, shall be deemed in any way to exist or bind any of the Parties
hereto. The Parties hereto acknowledge that this Agreement has been executed
without reliance upon any such promise, representation, or warranty not contained
herein.
C. Modification. No supplement, modification or amendment of this
Agreement shall be binding unless executed in writing by all of the Parties. No waiver
of any of the provisions of this Agreement shall be deemed to constitute a waiver of any
other provision whether or not similar, nor shall waiver constitute a continuing waiver.
No waiver shall be binding unless executed in writing by the Parties making the waiver.
D. Binding on Successors. This Agreement and the covenants and
conditions contained herein shall obligate, bind, extend to and inure to the benefit of the
Parties and each of their respective successors in interest, including, but not limited to,
their administrators, executors, owners, partners, officers, directors, shareholders, legal
representatives, assignees, attorneys, successors, and agents or employees of the
Parties hereto. Prior to assigning any rights or obligations Claimants have with respect
to this Agreement, the Use Permit and the New Use Permit to a third party, Claimants
shall obtain written confirmation that such assignee shall be bound by the terms of this
Agreement and that such Assignee shall also be entitled to receive the benefits of this
Agreement, the Use Permit and the New Use Permit.
E. Representation of Claimants. Claimants affirmatively represents
that they have been represented by counsel of their own choosing. Claimants have
read this Agreement and have had the terms used herein and the consequences
thereof explained by their attorneys of choice.
F. Construction. This Agreement shall not be construed against the
Party preparing it, but shall be construed as if all Parties jointly prepared this
Agreement. Any uncertainty and ambiguity shall not be interpreted against any one
Party. This Agreement is to be performed in California and it is to be interpreted,
enforced, and governed by and under the laws of the State of California. Language in
all parts of the Agreement shall be in all cases construed as a whole according to its
very meaning.
G. Attorneys' Fees and Costs. Except for reimbursement of costs
identified in Section 3(B)(iv) above, all attorneys' fees, expert fees and costs incurred
through the date of this Agreement that relate in any way to the Use Permit, the New
Use Permit, the Property, the Hearing Officer's Findings, the Tort Claim, the Dispute,
the negotiation or preparation of this Agreement or any action called for herein, shall be
borne by the respective Parties and each Party agrees to waive any claim, or claims,
against any of the other Parties for the reimbursement of all, or any portion of said fees
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or costs. Should suit be brought to enforce or interpret any part of this Agreement, the
prevailing party shall not be entitled to recover attorneys' fees.
H. No Admission of Liability. This Agreement and the releases
contained herein and the consideration referred to herein are done to save litigation
expense and to effect the compromise and settlement of claims and defenses which are
denied, disputed, and contested. Nothing contained herein shall be construed as an
admission by any Party of any liability of any kind to any other Party. The Parties agree
that each Party expressly denies that it is in any way liable or indebted to any other
Party and no person interpreting this Agreement shall be able to infer that any Party has
engaged in any conduct giving rise to liability to any other Party.
I. Gender Neutral. Whenever in this Agreement the context may so
require, the masculine, feminine and neutral genders shall be each deemed to include
the other and the singular and the plural shall refer to one another.
J. Counterparts. This Agreement may be executed in duplicate
counterparts, each of which shall be deemed an original and all of which shall constitute
an agreement to be effective as of the date of signing. Further, signatures transmitted
and memorialized by facsimile shall be deemed to have the same weight and effect as
an original signature. The Parties may agree that an original signature will be
substituted at some later time for any facsimile signature.
K. Captions and Interpretations. The paragraph titles and captions are
inserted in this Agreement as a matter of convenience. As such, the paragraph titles or
captions are not intended to define or describe the scope of any provision.
L. Invalid Clause May Be Severed. If any provision, clause, or part of
the Agreement is adjudged illegal, invalid or unenforceable, the balance of this
Agreement shall remain in full force and effect.
M. The warranties and representations made in this Agreement are
deemed to survive the execution of this Agreement.
N. Revocation proceedings before Planning Commission. Upon
approval of the New Use Permit, all scheduled hearings before the Planning
Commission related to the Use Permit shall be deemed completed and the New Use
Permit shall contain the applicable conditions of approval.
If the City Council fails to approve the New Use Permit and
Claimants provide written notice to terminate this Agreement as provided in section
3(A)(ii) above, then the revocation proceedings before the Planning Commission shall
continue with all Parties reserving all rights as if this Agreement never occurred.
O. BY SIGNING THIS AGREEMENT, THE PARTIES CERTIFY THAT
THEY HAVE READ IT, THAT THEY HAVE CONSULTED WITH THEIR LEGAL
COUNSEL ABOUT ITS EFFECT, AND THAT THEY FULLY UNDERSTAND IT.
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be
executed as of the date first above written and their attomeys have indicated their
approval as to form by their respective signatures in the appropriate spaces below.
[SIGNATURES ON FOLLOWING PAGES]
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CLAIMANTS:
FURY, LLC, A CALIFORNIA LIMITED LIABILTY CORPORATION DBA FURY ROK &
ROL SUSHI LOUNGE
Na��LwNrR � F y-
Title
Dated:— 61fq�itig'
By.
Name
Title
Dated:
FURY MANAGEMENT, INC ORNIA CORPORATION
By:
Name D& t 'vyAt z-
0
Title s,W'Pr"
Name
Title
Dated:
APPROVED AS TO FORM AND CONTENT:
SOLOMON, SALTSMAN & JAMIESON
Stephen Jamieson, Attorneys
for Fury, LLC, a California Limited Liability Corporation dba
Fury Rok & Rol Sushi Lounge, Fury Management, Inc.
a California Corporation
F: userslcatlsharedVCUPS1FurytSetOkg106- 13- 08dean.dm
10 ) x
CLAIMANTS:
FURY, LLC, A CALIFORNIA LIMITED LIABILTY CORPORATION DBA FURY ROK &
ROL SUSHI LOUNGE
Name
Title
Dated:
By:
Name
Title
Dated:
FURY MANAGEMENT, INC. A CALIFORNIA CORPORATION
A
Name
Title
Dated:
Name
Title
Dated:
APPROVED AS TO FORM AND CONTENT:
SOLOMON, SALTSMAN & MIESON
By:
R (3 - ` .- Waphee-dawie , Attorneys
a X1^45 for Fury, LLC, a California Limited Liability Corporation dba
Fury Rok & Rol Sushi Lounge, Fury Management, Inc.
a California Corporation
Dated: r5 ' ', 0 r C) 6
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in
DAVID GONZALES, an individual: BRIAN SCHILLIZZI, an individual:
By: s By.
David Gonzales Brian Schillizzi
Dated: 6 4,1 _ � Dated:
RIDGEWAY OF WHITNEY, A TOD RIDGEWAY, an individual:
CALIFORNIA GENERAL PARTNERSHIP
By: By:
Name Tod Ridgeway
Title
Dated:
By:
Name
Title
Dated:
CITY OF NEWPORT BEACH, CITY
COUNCIL
By:
Edward D. Selich,
Mayor
Dated:
ATTEST:
By:
LaVonne Harkless,
City Clerk
Dated:
Dated:
APPROVED AS TO FORM:
CITY OF NEWPORT BEACH
By:
Robin L. Clauson,
City Attorney
Dated:
APPROVED AS TO FORM AND CONTENT:
HARPER & BURNS, LLP
By:
Alan Burns,
Attorney for the City of Newport Beach
Dated:
F:usems raftharedX CUPS \F�uWetAgA06 -1 Mftfean.do 1 , r
DAVID GONZALES, an individual:
By.
David Gonzales
Dated:
BRIAN SCHILLIZZI, an individual:
By:
B n SchI111Z71
Dated: 2�
RIDGEWAY OF WHITNEY, A TOD RIDGEWAY, an Individual:
CALIFORNIA GENERAL PARTNERSHIP
By: By..
Name Tod Ridgeway
Title
Dated:
By:
Name
Title
Dated:
CITY OF NEWPORT BEACH, CITY
COUNCIL
Edward D. Selich,
Mayor
Dated:
ATTEST,
By:
LaVonne Harkiess,
City Clerk
Dated:
Dated:
APPROVED AS TO FORM:
CITY OF NEWPORT BEACH
By.
Robin L. Clauson,
City Attorney
APPROVED AS TO FORM AND CONTENT:
HARPER & BURNS, LLP
Alan Bums,
Attorneys for the City of Newport Beach
Dated:
F: �rsaxn�naremcurs�u�ytseiayway�a +oe�ae�.•ax
11
1�
DAVID GONZALES, an individual:
0
David Gonzales
Dated:
RIDGEWAY OF WHITNEY, A
CALIFORNIA GENERAL PARTNERSHIP
By:
Name
Title
Dated: (� _ f 0
By:
Name
Title
Dated: "�-
CITY OF NJEWPORT BEACH, CITY
Edward D. Selich r
Mayor tt
Dated: l0 0- C'�
ATTEST:
By :o�?V" M. &��
LaVonne Harkless,
City Clerk
Dated: y f2 LI /O
BRIAN SCHILLIZZI, an individual:
In
Brian Schillizzi
Dated:
TOD RIDGEWAY, an individual:
By. - / Ac.
Tod Ridgeway
Dated: b -1 6 —0 'i'�
APPROVED AS TO FORM:
CITY OF NEWPORT BEACH
By. _
Robin L. Clauson,
City Attorney
Dated: W)1%
APPROVED AS TO FORM AND CONTENT:
HARPER & BURNS, LLP
By:
Alan Burns,
Attorney for the City of Newport Beach
Dated:
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EXHIBIT 1
The Fury Settlement & Release Agreement
February 20, 2008
Mr. Mike Reed
Carl Warren & Company
P. O. Box 25180
Santa Ana, CA 92799 -5180
CITY OF NEWPORT BEACH
OFFICE OF THE CITY CLERK
LaVonne M. Harkless. MMC
RECEIVED
FEB 2 2 2M8
Attached is a claim for damages from Fury Rok & Rol Sushi Lounge for damages
sustained on January 17, 2008, at the Planning Commission hearing, Newport
Beach, CA. The claimant alleges damages as a result of the City exceeding their
authority and abusing their position.
We are forwarding this claim to you for investigation at the direction of the
Office of the City Attorney as attorney work product, with the intent that tht
investigative documentation remains confidential.
Sincerely,
04r 8'7l ot/ a). h��
LaVonne M. Harkless, MMC
City Clerk
1h
Attachment
1V�Wpprt Bolilevnrd r Post Oiiire Box _1.76fl_ Nevpport. Beach, Califorrnia .92658 - 89.15..
Telephone: (9491644-3005 • Fax: (949) 644 -3039 - www.city.newport- beach.ca.us
_ I1
• 02/19,?2008 TUE -.10: 5, 1 100.03/.004
W1O
CLAM AGAINST THE CITY OF NEWPORT BEACH Jl
VOR DAMAGES TO PERSONS OR MRSONAL PROPERTY ALLOWABLE
UN-DER711ECALIFORNLkGDVEItNK4rHrCOOF-T*(tTCLA4\I ACT)
7, F P11 2 7: 05
Receive y
U.S. M 0,&XIMESTAMP
Inter- Otlice Mail
Counter (FAX Not Accepied)
A claim must be Mod with the city clork of The City of Newport Beach mifbin 6 months after which the incident or event
occurred. Be aura your claim is against The City of Newport Beach, not another public emiLy. Whom space is insufficient,
plem use additional papor and identify inlomnation by para"b number. Complete claims must be mailed or delivered to:
The City Clerk, The City of Newport Beach. City Hall 3300 Newport Blvd, P.O. 1768, Newport Beach, CA 92658-9915.
Tempe or print in blue or black Ink (no pencil).
TO THE HONORABLE MAYOR AND CITY COUNCIL, The City of Newport Bcwj6 Calbrain
The undersigned respectfully submits: the following claim and information relative to damage to persons and/or persons,
property:
FLA-R� *RQV A 13(1 5U6141 L06N4E (510F A-IVACA-a
11. NAM OF CLAMIANT-
ADDRESS OF CLAIAVAft.- 12-2 j 1)0 Wi4lo SI-gtv-ffe- ycAw cA q 2-2-6o
STREETADDRESS ZAP CODE
b. PHONE NO.: (Tl )10y-'61900 c. DATE OF BIRTH:- 84—A-
d. DRBER'SLlC4XO.-PAt&
9
to width claimant desims notices to
3. 00curience, or event from which the claim arises:
& DATE, b. TIAIE-_ c, PLACE(e),actimilspedlic;location):
Sr
ZM el 7f
d. How and under what tdromostances; did damage or i4tayoccad Specify the ptudcalatowurmom event, actor
omission you claim caused ft Witty or damage (use additional paper Ifzcoessiuy);
Viliat action by the City, or its employees, caused ilitaltWd dinang, , Wort '
g. Names of Citycm layers involved : ----- _----
— ___.________._. ..__ -.
h. Give die names arany other party or parties involved in causing the alleged injury andror damage:
SSE lkGif�D —
4. Give a description of the injury, props" damage or loss, so far as is known at the time of this claim. if there were o0
5. Narpe and addresa of any other person Wutvd for which you are the parent or legal gmrdian:
dl..
6. Siaddress of owner eownofanydamagedproperty.
7. The amount of damages you are requesting to resolve your claim; 4 5-0,,000 OOO
a. Amount claimed as of dais data:
b. Estimated amount ollhitce .costs:
o, Total amount clabned-
d. Basis forcommttation ofamou ns
S
S
S-50, aoo . nno
S. Names and addressee of all hospitals, doctors, medical providers (physical theapy), eta. a A=
a
b.
G
d
9. My additional infornwtion that might be helpful in considering your claim;
el1TAZ
f
! FAILURE TO PROVIDE ANY OF TOE ABOVE INFORMATION MAY RESULT IN THE RETURN of YOUR SLAW
FOR INSUFFICIENCY AND MAY UN£C19SSARILY DELAYTffE CITY'S PROMPT RESPONSE To YOUR CLAIM.
WAMJUW,: IT IS A CRIMINAL OFFENSE To FILE A FALSE CLAM (Penal Code In; fosuraace Coda §356.1)
I hate read the mallets and statenreMS theft in tpe above claim 801 know dae same to be true of my own )WO ydedar,vxcopt
as to those matters stataA upon imfornuttion,or beliefand as to such maths, I believe the same to be ante. 'I =Iffyuudtirpenalty
ofpedurythat the foregoing is Tzzuw'amdcORt2aCT.
Signed. TR day of
OMe of tlte.0 by Clerk
Ntrsima He" California
.. GI:Cf.++tMPV.gu • tN8
a�
ATTACIt3'llE NTMorl Claim Against The City Of Newport Beach —Addendum
Fury Rok & Rol Sushi Lounge
February 20. 2008
Page I of
3.d. liow and under what circumstances did damage or injury occur? Specify the
particular occurrence, event, act, or omission you claim caused the injury or damage (use
additional paper if necessarv):
Claimant. Fury Rok & Rol Sushi Lounge, owned andlor operated by FURY, I.I.C. FURY
h•IANAGEMfiN'I INC.. DAVID GONZALES. and BRIAN SCNILLIZZI (hereaflcrcollectively
rcictned to as " Claimam" or `Fury "). doing business at 4221 Striker Way, Newport Beach.
California 92660, claims damages from and against the CI'T'Y 0I7 NEWPORT 11FACH, acting
through its departments. employees and agents, including, but not limited to the planning
Department, the Planning Commission, the Office of the City Attorney, and the Newport Beach
police Department (hereafter collectively referred to as "City ol'Newpon Beach" or "City "),
which have acted in concert to achieve a specific purpose in an unlawful manner by exceeding
their authority and by abusing their position to the point ilia( Claimant suffers injury, damage and
loss.
Claimant has obtained the necessary discreflonary and ministerial approvals for the operation of
the above - mentioned restaurant from the relevant governmental entities, such as, but not limited
to. the City of Newport Beach and the Calil'omia Department of Alcoholic Beverage Control.
Claimant has standing to protect economic and property tights and First Amendment rights
against any unlawful deprivation in violation of the United States Constitution, the California
Constitution, and 42 U.S.C. § 1983 along with other statutes, rules, and regulations.
3.c. Names and addresses of alt witnesses to this incident:
Planning Department. its Director and stali'
City of Newport Beach
3300 Nexpon Blvd.
Newport Beach. CA 92663 -3884
Planning Commission, its members and staff
City of Newport Beach
3300 Nevypon Blvd.
Newport Beach. CA 92663 -3884
Oltice of the City Attorney, its attorneys and staff
City of Newport Beach
3300 Newport Blvd.
Nc,epori Beach, CA 92663 -3884
Newport Beach Police Department, its Chief, officers, and staff
870 Santa Barbara Drive.
Newport Beach, CA
A�
ATfACHMENVTorl Claim Agains('fhe City Of Newport Beach — Addendum
Fury Rok & Rol Sushi Lounge
February 20, 2008
Page 2 of 6
David Gonzales
Fury Rok & Rol Sushi Lounge
4221 Dolphin Striker Way
Newport Beach, CA 92260
Brian Schilli7zi
Fury Rok & Rol Sushi Lounge
4221 Dolphin Striker Way
Newport Beach. CA 92260
Additional witnesses may be disclosed at a later date and time.
All Police Officers identified in the police reports and booking sheets and documents in the
possession of the City for all times where each and any or all of them were present at or around
Fury. These include, but are not limited to, the f)llowing:
• Sgt. Ron Vallercamp
• & Sa (ID No. 1320)
• Sarris (ID No. 125 3)
• Ofer Perkins (ID No. alit)
• P. Olson (ID No. 1 131)
• R. Hansen (ID No. 1334)
• T. -Leeman (ID No. 1330)
• Officer Dugan (ID No. 1293)
• Officer I lardy ND No. 1257)
• 0171cer Rodriguez (ID No. ulk)
• 011icer Schogei (ID No. u/k)
• Officer B. Rodriguez (ID no. 1208)
• Officer J. Yee (ID No. 1254)
• Officer Blakely (ID No. 1302)
• O icer henry (ID No. 1157)
• Sgt. Whisenant (ID No. ulk)
• Officer Johnson (ID No. 1305)
• Officer R. Gregson (1D No. 1336)
• Officer Hoo (fD No. u/k)
• Officer Cartwright (ID No. 1228)
• Officer Stucken (1D No. 133 8)
• Officer Foss (ID No. alit)
• Officer J. Perkins (ID No. 1319)
• Lt Hartford (ID No. u/k)
• Officer 14. Short (1D No. 1061)
A9TACIINIEWIYrurl C lainu Against The City Or Newport Reach - Addendum
Fury Rok & Rol Sushi Lounge
February 20, 2008
Page 3 ol'6
• Oliicer Maisano (ID No. 137a)
• Sgt Rocker (11) No ulk)
• Officer Pallas (II) No talk)
• Officer Sanborn (ID No. 1278)
• Olficcr 1). Jones (ID No. 992)
• Detective Matt Graham (11) No. 1 I80)
• Detective Eric Peterson (ID No. 1209)
• Detective Dave Stark (ID No. 1268)
• Officer Yoshioka (11) No. 1345)
• Officer Clemente (ID No. 12961
• Officer Card (1l) No. talk)
• Officer E Little (ID No. 1287)
• Officer Montero (ID No. talk)
• OlficerA.Olivas (ID No. 1331)
• Officer McKenzie (11) No. 1 162)
• Officer Miner (ID No. 1240)
• Officer Fitzgerald (11) No. 1308)
• Detective Doug Jones
• Sgt. Arnold (11) No. talk)
3.f. What parlicuhu• action by the City, or Its employees, caused the -.alleged damnge or
injury:
The City's conduct in seeking to revoke Use Permit Nos. 3162 and 2005 -018 evidences
conscious disregard for the due process lights of Fury and intent to deprive Fury of its
constitutionally protected and vested property rights and First Amendment rights.
Claimant's damage or injury is caused by the enactment. application and cnfbmemenl of the City
ordinances, resolutions, municipal codes, policies, rules and regulations, wfluen and verbal.
public and -underground- in violation of Constitutional principles of due process, equal
protection, First Amendment. and other rights and obligations. For example and not by way of
limitation in any manner, the Municipal Code provisions being utilized is an attempt to revoke,
and otherwise contended by the City to be applicable to revoke, existing Conditional Use Permits
3162 and 2005 -018, which also directly and indirectly serve then to revoke and cause revocation
ofthe Entertainment Permits known as Live Entertainment and Laid Dance permits which are
held by these Claimants are unconstitutional. Each is vague. oppressive, overbroad, and do not
provide constitutionally required due process and procedures in the form of notice, opportunity
to be heard, by an unbiased decision maker, in a forum where witnesses can be produced. are
placed under onih to tesuWy. can be compelled to appear. am subject to direct confrontation and
adequate cross examination, along with a decision that is rendered in a quasi judicial forum, and
that can be reviewed by and appealed to a reviewing entity, with an adequate record thereof. Aw
Municipal Code Sections of due City applicable to and applied by the City for purposes of
�3
ATTACHNI ENT /Tort Claim
Fury Rok & Rol Sushi Lounge
February 20. 2008
Page 4 ol'6
Against The City Of Nee port (teach — Addendum
directly and indirectly revoking these Conditional Use Permits and Live Entertainment and Cal ;%
Dance Permits do not contain these necessary safeguards and arc not applied in a nay to these
Claimants' constitutionally protected property rights and first Amendment and other rights, and
thus has caused and will continue to cause monetary and other damages to Claimants.
The City violated Claimant's rights to due process (procedural and substantive) and equal
protection of the law. Meetings were conducted, and decisions were made, by County personnel
and agents in violation of the Brown Act. (Cal. Gov'( Codc § 54950 vr.seq.)
The City disregarded the noticed purpose of the January 17. 2008 hearing before the Planning
Commission, which %vas simply a ministerial act of setting it hearing date for the Use Permit
revocation proceeding, and. instead, unla%wlblly lransl'onned the hearing into an "unnoticed"
revocation hearing. The Nc%%port Beach Municipal Code. on its face, does not grant the
Planning Commission discretion as to whether to set a hearing or not and, therefore. the
voluminous evidence presented by the Planning Department was unwarranted and intended only
to irreparably taint the Planning Commission in favor of the prosecution.
Moreover, the City permitted the Planning Commission's legal advisor. Assistant City Attorney,
Aaron Harp, to prosecute the revocation hearing before the Planning Commission on January 17.
2008.
It is the policy and custom of the City to arbitmtily. actively. and openly engage in selective
enforcement against Fury with the sole purpose of forcing Fury to permanently close its doors.
The City has repeatedly harassed Fury, its employees and its patrons over a period ufmonths.
beginning shortly after Fury opened and continuing through present. The City`s oppressive,
heavy - handed. and inappropriate tactics, including, but not limited w. the creation and
dissemination of untruths and misinformation about Fury's business practices, clientele, and
operation. have resulted in a loss of business goodwill. lass of past, present, and future income.
and loss ol'value of the 18 plus year lease. and continues to do so today. The policy and custom
of the City in harassing Fury has caused and will continue la cause damages to this business over
the tern of the lease and. Willis entity goes out of business, the damages extend for the length
and shall be calculated by the length of the Lease.
For many months, from sometime after (tun, Rok & Rol Sushi Lounge started operations, the
City has repeatedly continuously and pervasively adopted an intentionally conspicuous police
presence at Claimant's premises with unilbrmed officers, marked vehicles. and repeat %dsits to
the premises under the pretext of Permit and Code linlbrcement, but in actuality intended to
cause and has caused severe loss of business. good %rill, and ultimately dollar damages to Fury
and its owners and operators. Rarely, il'ever, have there been any actual calls for service or
complaints by the public to this location which required police response. The City routinely
detains Fury patrons only to release them without arrest or subsequent prosecution. The City
willingly attributes unlawful behavior to Fury without first assessing the veracity ol'the
�A
ATTACIti171iNTrfor1 Claim Against The Cily of Newport Beach —Addendum
Fury Rok & 1201 Sushi Lounge
February 20. 2008
Page 5 of 6
allegations. The City tells others that Fury is otherwise closed for business or will be closing
shortly.
The City therefore is therefore trying to put Fury, a lawfid operation, out of business in a
concerted scheme and pattern and practice of harassment and false allegations, rather than
retying on other appropriate mechanisms to achieve the same ends, that interlcres with and
dirvetly contravenes Claimant's property interests and First Amendment rights. The City is
acting unreasonably.
3.g. Names of Cfh employees involved.
Robin Claumni. City Attorney
Aaron Harp. Assistant City Attorney
Robert Hawkins, Chairman, Planning Commission
Scott Peotter, Vice- Chairman, Planning Commission
Bradley I- lillgren, Secretary. Planting Commission
Jeffrey Cole, Planning Commission
Barry Eaton. Planning Commission
Earl McDaniel. Planning Commission
Michael Toerge. Planning Commission
David Lepo. Planning Director
John Klein, Police Chief
And all personnel and Starr of the City Attorney, the Planning Department. the Planning
Commission and the Police Department as referenced herein as well as the documents and
inlitrmation available to the City in the form of staff reports, police reports of all kinds, and other
City generated documentation.
4. Given description of the injury, property damage or loss, so far as is known at the (line
of this claim. If there were no injuries, state "no injuries."
As a result of the improper. illegal, and unconstitutional actions and omissions by the City,
Claimants have sullcred and continue to suffer damage in the form of lost profits and carvings,
diminution in the value of the business. loss of past, current, future, and subsequent business and
patronage, loss ofbusiness good will, attorney fees :rod costs to respond to the City's illegal and
unconstitutional conduct. emotional distress to the individual claimants, as well as all similar
t arious types ofdannages. in amounts according to proof but not less than $50.000,000.
Claimant will also be entitled to additional monetary damages for prejudgment interest, other
incidental and consequential damages, direct and indirect. and legal ti.'es and costs.
4. Name and address of the owner of any damaged property.
A'1'TACII.NIENTMirt Claim Against The City O1' New port livnew) Addendum
Fury Rok & Rol Sushi Lounge
February 20, 2008
Page 6 01'6
Fury Rok & IZol Sushi Lounge, its owners and operators
4221 Dolphin Striker Way
Newport Beach. CA 92260
Tod Ridgcvvvy
Ridgeway Development Co
2804 Lad'ayette Ave
Newport Beach, CA 92663
0
EXHIBIT 2
The Fury Settlement & Release Agreement
�1
RESOLUTION NO. 2008- 64
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT
BEACH APPROVING USE PERMIT NO. 2008 -043 ON PROPERTY
LOCATED AT 4221 DOLPHIN STRIKER WAY (PA2008 -122)
WHEREAS, in 1973, the properly located at 4221 Dolphin Striker Way, Newport
Beach, California, legally described as Parcel 1 of Parcel Map No. 45 -23 ("Property")
was developed as an El Torito Restaurant, prior to the need to obtain a use permit; and
WHEREAS, on October 24, 1985, the Planning Commission considered and
approved Use Permit No. 3162 when the existing restaurant expanded dining and
drinking to a patio existing on the Property at the time; and
WHEREAS, on July 7, 2005, the City approved an amendment to Use Permit No.
3162 and Use Permit No. 2005 -018 (PA2005 -087) to allow live entertainment and
dancing as accessory uses to the existing restaurant; and
WHEREAS, on or about June 22, 2007, Fury Rok & Rol Sushi Lounge opened
for business at the Property; and
WHEREAS, the operators of Fury Rok & Rol Sushi Lounge are Brian Schillizzi
and David Gonzales and the business is owned by Fury, LLC, whose sole member is
Fury Management, Inc. (collectively "Fury"); and
WHEREAS, on or about January 4, 2008, the Planning Director for the City of
Newport Beach determined that there were reasonable grounds for revocation of Use
Permit No. 3162 as Use Permit No. 2005 -018 based on violations of the conditions of
approval; and
WHEREAS, on January 17, 2008, the Planning Commission held a hearing to
set a date to consider whether Use Permit No. 3162 and Use Permit No. 2005 -018
should be revoked; and
WHEREAS, at the conclusion of the January 17, 2008, hearing, the Planning
Commission determined that said hearing should occur on February 21, 2008; and
WHEREAS, on February 20, 2008, Fury submitted a claim alleging, among other
things, that they had sustained damages as a result of the City's violation of Claimants'
rights under the United States Constitution, the California Constitution, federal law, state
law and common law and identifying Tod Ridgeway as the owner of the Property CTort
Claim "); and
WHEREAS, on February 21, 2008, the Planning Commission held a hearing to
consider the revocation of Use Permit No. 3162 and Use Permit No. 2005 -018; and
WHEREAS, at the conclusion of the hearing on February 21, 2008, the Planning
Commission determined that a hearing officer should take evidence and submit
1911,
proposed findings and recommendations for consideration by the Planning Commission;
and
WHEREAS, on or about April 30, 2008, the hearing officer submitted proposed
findings and recommendations (hereinafter ( "Hearing Officer Findings ") that
recommended revocation of Use Permit No. 3162 and Use Permit No. 2005 -018; and
WHEREAS, on or about June 24, 2008, the City, the Fury, Tod Ridgeway, and
the owner of the Property, Ridgeway of Whitney, a California general partnership,
entered into a settlement agreement which provided in part that the City Council would
consider the approval of Use Permit No. 2008 -043 at a public hearing; and
WHEREAS, on June 24, 2008, the City Council held a noticed hearing in the City
Hall Council Chambers, at 3300 Newport Boulevard, Newport Beach, California at
which time the project application was considered; and
WHEREAS, notice of time, place and purpose of the public hearing was given in
accordance with law and testimony was presented to, and considered by, the City
Council at the hearing; and
WHEREAS, a use pen-nit for a 7,996 square -foot, full - service, eating and drinking
establishment with a net public area of 4,162 square feet, to allow full alcohol beverage
service with a Type "47" ABC License (On -Sale General Eating Place), and to allow live
entertainment and dancing as accessory uses to the eating and drinking establishment
at the Property has been prepared in accordance with Section 20.91.035 of the Newport
Beach Municipal Code based on the following findings and facts in support of such
findings:
Finding: That the proposed location of the use is in accord with the objectives of
this code and the purposes of the district in which the site is located.
Facts in Support of Finding: The subject property is located within the Newport
Place Planned Community (PC -11) Zoning District The restaurant is located within
the airport commercial area and surrounding land uses are dominated by
commercial and professional offices. Restaurant uses with dancing and live
entertainment can be expected to be found in this and similar locations and are
complimentary to the commercial uses.
In accordance with the requirements of Chapter 20.89, the location of the
proposed Alcoholic Beverage Outlet was considered with respect to issues of
public necessity and impacts to surrounding land uses. The use will provide a
public convenience by offering alcoholic beverage sales to restaurant patrons.
The location of the use is considered appropriate given the fact that the site is not
located in close proximity to day care centers, schools or places of religious
assembly. In addition, the settlement agreement and conditions of approval
contain additional restrictions on the use of the Property to address the Police
Department's concerns related to the prior operations at the Property.
2
A'
2. Finding: That the proposed location of the use permit and the proposed conditions
under which it would be operated or maintained will be consistent with the General
Plan and the purpose of the district in which the site is located; will not be
detrimental to the public health, safety, peace, morals, comfort, or welfare of
persons residing or working in or adjacent to the neighborhood of such use; and will
not be detrimental to the properties or improvements in the vicinity or to the general
welfare of the City.
Facts in Support of Finding_ The proposed restaurant is consistent with the land use
designation of the General Plan. All development regulations of the PGA t Zoning
District would be met, including building setbacks, structure height limitations and
development limits. The restaurant has been conditioned in such a manner to
meet the intent of the Zoning Code regulations, including any specific conditions
required for the proposed restaurant and to require strict adherence to safety and
noise regulations.
In accordance with the requirements of Chapter 20.89, approval of the Alcoholic
Beverage Outlet is subject to the consideration of factors relating to over -
concentration of alcohol licenses, crime rates including numbers of alcohol
related crimes, and impacts to the surrounding community. The Police
Department has reviewed the project and has determined that the sale of
alcoholic beverages in conjunction with the proposed restaurant, given the
additional restrictions on the use of the Property as contained in the conditions of
approval and settlement agreement, should not result in an increase in alcohol -
related crimes and will not result in an over - concentration of alcoholic beverage
outlets since the request will not result in an increase in the number of ABC
licenses within the reporting district. The proposed restaurant, including alcohol
beverage sales, will not have a negative impact on the surrounding community,
provided the conditions of approval are complied with.
3. Finding: That the proposed use will comply with the provisions of this code,
including any specific condition required for the proposed use in the district in which
it would be located.
Facts in Support of Finding: The request to allow the operation of a restaurant,
which includes the serving of alcoholic beverages on the premises and the
proposed conditions under which it would be operated or maintained, are
consistent with the General Plan and the purpose of the district in which the site
is located. The request is located within the existing building that is designated
and zoned for this commercial activity. The use has been conditioned in such a
manner to minimize the impacts associated with it The plan, as conditioned,
meets the design and development standards for eating and drinking
establishments.
In accordance with the requirements of Chapter 20.89, the project has been
conditioned to avoid potential negative impacts on the surrounding community.
3
36
WHEREAS, the project qualifies for a Categorical Exemption pursuant to Section
15301 (Existing Facilities) of the California Environmental Quality Act in that the proposed
interior improvements to accommodate the new restaurant are minor in nature and are
within the tenant space formerly occupied by an eating and drinking establishment; and
NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of
Newport Beach hereby approves Use Permit No_ 2008 -043, subject to Conditions of
Approval in Exhibit "A° attached hereto and made part hereof. Use Permit No. 3162
and Use Permit No. 2005 -018 are hereby rescinded and superseded by Use Permit No-
2008-043.
This resolution shall take effect immediately upon adoption. Passed and adopted
by the City Council of Newport Beach at a regular meeting held on June 24, 2008 by the
following vote to wit:
Adopted this 24th day of June, 2008. X"
Mayor
ATTEST:
City Clerk
4
31
EXHIBIT "A"
CONDITIONS OF APPROVAL
1. The eating and drinking establishment shall be operated and maintained in
substantial conformance with the site plan and floor plan including the seating
arrangements dated June 17, 2008 (Approved Plans).
2. The approval of this Use Permit supersedes and rescinds Use Permit Nos. 3162
and 2005 -018.
3. The primary use, as depicted on the Approved Plans, is an eating and drinking
(restaurant) establishment as defined in Section 20.05.050.K of the Newport
Beach Municipal Code. Full menu food service shall be available for ordering at
all times that the restaurant establishment is open for business. No "late- night"
special menu is allowed. The operational character of the use shall not be
changed to a bar, tavem, cabaret, nightclub, cocktail lounge or commercial
recreational entertainment venue as a primary use. A bar, tavern, cabaret,
nightclub, cocktail lounge or commercial recreational entertainment venue shall
not be an authorized use pursuant to this Use Pen-nit.
4. The total net public area for the entire restaurant shall not exceed 4,162 square feet
and 203 seats. The existing patio shall only be used as "smoking patio" with no live
entertainment, dancing, dining and drinking allowed.
5. Live entertainment and dancing shall be permitted as accessory uses (less than
twenty percent [20 %] or 833 square feet of the net public area) and shall be
conducted only in conjunction within the limitations set forth in Conditions 14 and
15 below.
6. Strict adherence to maximum occupancy limit of 297 persons in the interior of the
building and 15 persons on the smoking patio is required. The maximum
occupancy limits shall be posted and the location of maximum occupancy
postings in sections of the building and smoking patio shall be inspected and
approved by the Building Department or Fire Department to ensure the location
is readily visible to employees, patrons and public safety personnel.
7. Use Permit No. 2008 -043 shall expire unless exercised within 24 months from
the date of approval as specified in Section 20.91.050 of the Newport Beach
Municipal Code, unless an extension is otherwise granted.
8. Hours of operation shall be from 10:00 a.m. to 12:00 a.m., Sunday - Wednesday,
and from 10:00 a.m. to 2:00 a.m., Thursday - Saturday. The establishment shall
be allowed to be opened until 2:00 a.m. on 3 holidays per year, if those holidays
land on Sunday through Wednesday night.
9. A minimum of one parking space for each 40 square feet of "net public area'
shall be provided for the subject restaurant. Based on the Approved Plans, a
5
p
total of 105 parking spaces shall be provided, of which 16 spaces shall be
located at an off -site location.
10. A minimum of 16 off -site parking spaces shall be provided on property described
as Parcel No. 1 of Parcel Map 83 -705, located at 1500 Dove Street and 4141
MacArthur Boulevard. Said parking spaces shall be provided for the duration of
the restaurant use.
11. The restaurant operator shall maintain the recorded covenant against the
property comprising the approved off - street parking location, the form and
content of which is acceptable to the City Attorney, binding the applicant and its
successors in interest in perpetuity, to provide a minimum of 16 parking spaces
for the subject restaurant. This covenant shall continue in effect until such time
as the restaurant has been discontinued or suitable replacement parking is
provided at a location acceptable to the City Council.
12. The restaurant employees shall be required to use the 16 off -site parking spaces.
13. All owners, managers and employees involved in the selling of alcoholic
beverages shall undergo and successfully complete a certified training program
in responsible methods and skills for selling alcoholic beverages. 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. All existing owners, managers and employees involved in the
selling of alcoholic beverages shall comply with the requirements of this section
within 90 days of the approval of the Use Permit and all new owners, managers
and employees involved in the selling alcoholic beverages shall comply with the
requirements of this section prior to their involvement in the selling of alcoholic
beverages at the restaurant. 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.
14. Prior to the commencement of live entertainment activity, the applicant shall
obtain a Live Entertainment Permit issued pursuant to Chapter 5.28. of the
Newport Beach Municipal Code. All live entertainment activities shall be in full
compliance with the conditions of the Live Entertainment Permit. No audible
paging system or amplified music shall be allowed outside the building.
15. Prior to the commencement of patron dancing, the applicant shall be required to
obtain a Cafe Dance Permit issued pursuant to Chapter 5.32 of the Newport
Beach Municipal Code. All dancing activities shall be in full compliance with the
conditions of the CafB Dance Permit.
16. Live entertainment and dancing shall be limited to the areas shown on the
approved plans.
17. Should this business or either alcohol license be sold or otherwise come under
different ownership or control, any future owners, operators or assignees shall be
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notified in writing of the conditions of this approval by the current owner /operator.
Future owners, operators or assignees shall submit, within 30 days of transfer or
sale of the business or alcohol license, a letter to the Planning Department
acknowledging their receipt and acceptance of the limitations, restrictions and
conditions of approval of this Use Permit.
18. The Use Permit or any of the conditions of this Use Permit may be modified or
revoked by the City Council or Planning Commission should they determine that
the business is not operated in full compliance with any of the conditions of this
Use Permit or any other required permit, and /or the 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.
19. A grease interceptor of adequate size is required in association with food
preparation activities.
20. The alcoholic beverage outlet operator shall take reasonable steps to discourage
and correct objectionable conditions that constitute a nuisance in parking areas,
sidewalks and areas surrounding the alcoholic beverage outlet and adjacent
properties during business hours, if directly related to the patrons of the subject
alcoholic beverage outlet.
21. The type of alcoholic beverage license issued by the California Board of
Alcoholic Beverage Control shall be a Type "47" On -Sale General Eating Place
license for full alcohol service ( "bona fide eating place ") and on -site consumption
only, and only in conjunction with the service of food as the principal use of the
facility. The sale of alcoholic beverages is prohibited for off -site consumption.
Any change in the alcoholic beverage license shall be subject to the approval of
an amendment to this application and may require the approval of the Planning
Commission or City Council.
22. The business shall comply with all federal, state, and local laws.
23. A maximum of 6 special events (i.e. any event or promotional activity outside the
normal operational characteristics of the restaurant business that would attract
large crowds, involve the sale of alcoholic beverages, include any form of on -site
media broadcast, or any other activities as specified in the Newport Beach
Municipal Code relating to Special Event Permits) shall be permitted each
calendar year. Prior to having a special event, a Special Event Permit shall be
obtained in accordance with the provisions of Chapter 11.03 of the Newport
Beach Municipal Code. Any special events in excess of 6 special events per
calendar year shall require the approval of an amendment to this Use Permit.
24. Any event or activity staged by an outside promoter or entity, where the
restaurant owner or his/her employees or representatives share in any profits, or
pay any percentage or commission to a promoter or any other person based
upon money collected as a door charge, cover charge or any other form of
admission charge, including minimum drink orders or sale of drinks is prohibited.
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25. 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, or sale of drinks is prohibited.
26. Bottle service shall be prohibited unless a locking device is utilized and the
server, not the patron, maintains the key to the locking device, such that the
patron may not pour his/her own drinks. The ordering of bottle service shall not
be a condition of entering the restaurant establishment. Bottle service for
purposes of this condition is the service of a full bottle of distilled spirits as
opposed to individual prepared drinks.
27. The operator of the restaurant facility shall be responsible for the control of noise
generated by the subject facility. Noise generated by live entertainment shall
comply with any limitations contained in the Live Entertainment Permit. The
noise generated by the proposed use shall comply with the provisions of Chapter
10.26 of the Newport Beach Municipal Code.
28. No alcoholic beverages may be consumed at any time on any property adjacent
to the licensed premises under the control of the license.
29. "Happy hour" type of reduced price alcoholic beverage promotions are prohibited.
30. The monthly gross sales of alcoholic to food shall not exceed 50% alcoholic
beverages to 50% food service during the same period. The licensee shall
maintain records that reflect separately the monthly gross sales of food and the
gross sales of alcoholic beverages of the licensed business. Records shall be
kept no less frequently than on a monthly basis and shall be made available to
the Planning Department on demand.
31. There shall be no on -site radio, television, video, film, internet or other electronic
media broadcasts, including recordings for the broadcast at a later time, which
include the service of alcoholic beverages, and /or commercial film permit in
accordance with Chapter 5.46 of the Municipal Code without first obtaining an
approved Special Event Permit as issued by the City of Newport Beach.
32. Sales, delivery and consumption of alcoholic beverages shall be restricted to and
within the confines of the building of the premises and sales or delivery of
alcoholic beverages through any pass- through window is prohibited.
33. 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.
34. Storage outside of the building in the front, side or at the rear of the building shall
be prohibited, with the exception of the required trash container enclosure.
35
35. The applicant shall ensure that the trash dumpsters and /or receptacles are
maintained to control odors, which may include the provision of fully self -
contained dumpsters or may include periodic steam cleaning of the dumpsters, if
deemed necessary by the Planning Department. Cleaning and maintenance of
trash dumpsters shall be done in compliance with the provisions of Title 14 of the
Newport Beach Municipal Code, including all future amendments (including
Water Quality related requirements).
36. A covered wash -out area for refuse containers and kitchen equipment with
minimum useable area dimensions of 36- inches wide, 36- inches deep and 72-
inches high, shall be provided and the area shall drain directly into the sewer
system, unless otherwise approved in writing by the Building Director and Public
Works Director in conjunction with the approval of an alternative drainage plan.
37. Deliveries and refuse collection for the facility shall be prohibited between the
hours of 10:00 p.m. and 8:00 a.m., daily, unless otherwise approved by the
Planning Director, and may require an amendment to this use permit.
38. All trash shall be stored within the building or within dumpsters stored in the trash
enclosure (three walls and a gate), or otherwise screened from view of
neighboring properties except when placed for pick -up by refuse collection
agencies. The trash dumpsters shall have a top which shall remain closed at all
times, except when being loaded or while being collected by the refuse collection
agency.
39. The applicant shall submit a comprehensive security plan for the permitted uses for
review and approval by the Newport Beach Police Department within 30 days of
approval of this Use Permit, or prior to opening the business, which ever comes
first. The procedures included in the plan and any recommendations made by the
Police Department shall be implemented and adhered to for the life of the Use
Permit.
40. By signing this Use Permit, the permittee acknowledges all of the conditions
imposed and accepts this permit subject to those conditions and with the full
awareness of the provisions of Chapter 20.82 (Eating and Drinking Establishments)
and Chapter 20.89 (Alcohol Beverage Outlets) of the Newport Beach Municipal
Code.
41. Valet service shall be permitted if the applicant obtains all appropriate approvals
from the adjoining restaurant operators and permits from the City of Newport
Beach.
42. Full menu lunch service shall be provided daily.
43. All deliveries shall be made on -site.
44. The outdoor smoking patio shall have and maintain an exit gate with panic
hardware.
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45. The west exit door shall swing outward and have panic hardware.
46. The owner and operator shall comply with all terms of the settlement agreement
attached hereto.
ACKNOWLEDGE OF USE PERMIT CONDITIONS
,M]
31
STATE OF CALIFORNIA }
COUNTY OF ORANGE
CITY OF NEWPORT BEACH }
I, LaVonne M. Harkless, City Clerk of the City of Newport Beach, California, do
hereby certify that the whole number of members of the City Council is seven; that the foregoing
resolution, being Resolution No. 2008 -64 was duly and regularly introduced before and adopted by
the City Council of said City at a regular meeting of said Council, duly and regularly held on the
24th day of June 2008, and that the same was so passed and adopted by the following vote, to wit:
Ayes: Henn, Rosansky, Daigle, Webb, Curry, Gardner, Mayor Selich
Noes: None
Absent: None
Abstain: None
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the
official seal of said City this 25th day of June 2008.
(Seal)
,M 2�
Ci yt Clerk
Newport Beach, California
30
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EXHIBIT 3
The Fury Settlement & Release Agreement
At
EXHIBIT 3
TO SETTLEMENT AGREEMENT
1. Robin Clauson, City Attomey
2. Aaron Harp, Assistant City Attomey
3. Allen Bums, Attorney advising Planning Commission
4. Tom Allen, Hearing Officer
5. June Ailin, Attorney, Aleshire & Wynder
6. Anthony Taylor, Attorney, Aleshire & Wynder
7. Robert Hawkins, Chairman, Planning Commission
8. Scott Peotter, Vice - Chairman, Planning Commission
9. Bradley Hillgren, Secretary, Planning Commission
10. Jeffrey Cole, Planning Commission
11. Barry Eaton, Planning Commission
12. Earl McDaniel, Planning Commission
13. Michael Toerge, Planning Commission
14. Mayor Ed Selich
15. Mayor Pro Tern Leslie J. Daigle
16. Council Member Steven Rosansky
17. Council Member Michael F. Henn
18. Council Member Don Webb
19. Council Member Nancy Gardner
20. Council Member Keith D. Curry
21. David Lepo, Planning Director
22. John Klein, Police Chief
23. Craig Frizzell, Lieutenant
24. Rosalihn Ung, Planning
25. Patrick Alford, Planning
26. Ginger Varin, Planning
27. Kdsty Parker, Paralegal
28. Shannon Levin, Code Enforcement
29. Matt Cosylion, Code Enforcement
30. John Kappeler, Code Enforcement
31. Glen Everroad, Revenue
32. Steve Bunting, Fire Marshal
33. Steve Michael, Fire Inspector/ Building Inspector
34. Ron Larson, Deputy Fire Marshal
35. Ron Vallercamp, Sergeant
36. Doug Jones, Detective
37. Eric Peterson, Detective (now patrol)
38. Dave Stark, Detective
39. Matt Graham, Detective
40. Elijah Hayward, Detective
41. Glen Garrity, Detective
42. Paul Salenko, Crime Analyst
Exhibit 3 Page 1 �a.
43. Steve Koudelka, Lieutenant
44. Brice Hardy, Patrol (ID No. 1257)
45. J. Yee, Patrol (ID No. 1254)
46. S. Amold, Sergeant (ID No. 1008)
47. S. Dugan, Patrol (ID No. 1293)
48. S. Sa, Patrol (ID No. 1320)
49. B. Hass, Patrol (ID No. 1154)
50. Officer Sarris (ID No. 1253)
51. Officer J. Perkins (ID No. 1319)
52. Officer P. Olson (ID No. 1131)
53. Officer R. Hansen (ID No. 1334)
54. Officer T. Zeeman (ID No. 1330)
55. Officer Dugan (ID No. 1293)
56. Officer Schogei
57. Officer B. Rodriguez (ID No. 1208)
58. Officer Blakely (ID No. 1302)
59. Officer Henry (ID No. 1157)
60. Whisenant, Sergeant
61. Officer Johnson (ID No. 1305)
62. Officer Gregson (ID No. 1336)
63. Officer Hoo
64. Officer Cartwright (ID No. 1228)
65. Officer Stucken (ID No. 1338)
66. Officer Foss
67. Hartford, Lieutenant
68. Officer H. Short (ID No. 1061)
69. Officer Maisano (ID No. 1324)
70. Rocker, Sergeant
71. Officer Pallas
72. Officer Sanborn (ID No. 1278)
73. Officer Yoshioka
74. Officer Clemente
75. Officer Card
76. Officer E. Little (ID No. 1287)
77. Officer Montero
78. Officer A. Olivas (ID No. 1331)
79. Officer McKenzie
80. Officer Miner (ID No. 1240)
81. Officer Fitzgerald (ID No. 1308)
Exhibit 3 Page 2