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HomeMy WebLinkAbout2011-80 - 333 Bayside DriveRESOLUTION NO. 2011 -80 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH REVERSING THE DECISION OF THE PLANNING COMMISSION AND APPROVING CONDITIONAL USE PERMIT NO. UP2011 -007 FOR AN EATING AND DRINKING ESTABLISHMENT LOCATED AT 333 BAYSIDE DRIVE (PA2011- 041) THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. 1. An application was filed by Jeff Reuter, with respect to the property located at 333 Bayside Drive, and legally described as Lot B of Parcel Map Book 16 Page 10 (Resubdivision No. 249), requesting approval of a new conditional use permit. 2. The applicant filed an application requesting a new conditional use permit to extend the hours of operation granted by Accessory Outdoor Dining Permit No. 2007 -001 for an existing outdoor dining patio from 9:00 a.m. to 9:30 p.m. daily to 9:00 a.m. to 1:00 a.m. daily. No other changes to the existing restaurant operations were requested or proposed. 3. The subject property is located within the Commercial Recreational and Marine (CM) Zoning District and the General Plan Land Use Element category is Recreational and Marine Commercial (CM). 4. The subject property is located within the coastal zone. The Coastal Land Use Plan category is Recreational and Marine Commercial (CM -A). 5. A public hearing was held on May 19, 2011, in the City Hall Council Chambers, 3300 Newport Boulevard, Newport Beach, California. A notice of time, place and purpose of the meeting 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 meeting. 6. At the May 19, 2011, Planning Commission hearing, the Planning Commission voted unanimously (5 ayes, 2 excused) to deny the project without prejudice. 7. On May 25, 2011, the Planning Commission's decision to deny Conditional Use Permit No. UP2011 -007 was appealed by City Councilmember Edward Selich. The appeal was filed to discuss and review the inconsistency of the denial with approval of Outdoor Dining Permit No. 49 granted to Ristorante Mamma Gina's (now Sol Cocina) adjacent to the subject property, and to discuss and review the requirement that the operator obtain an Operator License pursuant to NBMC Chapter 5.25 to allow a higher level of control over the operation of the existing outdoor dining patio. City Council Resolution No. 2011 -80 3- Thirty -3 Waterfront Restaurant (PA2011 -041) Conditional Use Permit No. UP2011 -041 Page 2 of 13 8. A public hearing was held by the City Council on June 28, 2011, in the City Hall Council Chambers, 3300 Newport Boulevard, Newport Beach, California. A notice of time, place and purpose of the meeting was given in accordance with the Newport Beach Municipal Code. Evidence, both written and oral, was presented to, and considered by, the City Council at this meeting. 9. Pursuant to Section 20.64.030.C, the public hearing was conducted "de novo," meaning that it was a new hearing and the decision being appealed has no force or effect as of the date the call for review was filed. SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION. 1. This project has been determined to be categorically exempt under the requirements of the California Environmental Quality Act under Class 1- Existing Facilities. 2. This exemption applies to existing facilities where it can be demonstrated the project involves no expansion of the existing use. The change in hours of operation does not involve an expansion of the existing use. SECTION 3. REQUIRED FINDINGS. In accordance with Section 20.48.030 of the Newport Beach Municipal Code, the following finding and facts in support of such finding is set forth: Finding: A. The use is consistent with the purpose and intent of Section 20.48.030 (Alcohol Sales) of the Zoning Code. Facts in Support Finding: A -1. The project has been reviewed and conditioned to ensure that the purpose and intent of Section 20.48.030 (Alcohol Sales) of the Zoning Code is maintained and that a healthy environment for residents and businesses is preserved. The service of alcoholic beverages is intended for the convenience of customers of the restaurant. Operational conditions of approval recommended by the Newport Beach Police Department (NBPD) relative to the sale of alcoholic beverages will ensure compatibility with the surrounding use and minimize alcohol - related impacts. A -2. Pursuant to Chapter 5.25 of the NBMC, the project has been conditioned to require that the applicant, as well as any future operators of the existing eating and drinking establishment, obtain an Operator License to ensure the establishment is operated in a safe manner. Tmplt: 03/08/11 City Council Resolution No. 80 3- Thirty -3 Waterfront Restaurant (PA2011 -041) Conditional Use Permit No. UP2011 -041 Paqe 3 of 13 In accordance with Section 20.20.020 of the Zoning Code, eating and drinking establishments classified as "Food Service, Late Hours" require the approval of a conditional use permit within the Commercial Recreational and Marine (CM) Zoning District. In accordance with Section 20.52.020.E of the Zoning Code, 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. Facts in Support of Finding: B -1. The Recreational and Marine Commercial (CM) land use designation of the General Plan is intended to encourage and provide for mutually supportive business and visitor - serving uses. The operation of a "Food Service, Late Hours" use with alcoholic beverage sales is consistent with the purpose and intent of this land use designation. B -2. Food service uses are expected to be located in commercial areas, and are complementary to the existing commercial and residential uses in the area. Such uses are frequented by visitors, tenants of the nearby commercial uses, and residents alike. B -3. The subject property is not part of a specific plan area. Finding: C. The use is allowed within the applicable zoning district and complies with all other applicable provisions of this Zoning Code and the Municipal Code. Facts in Support of Finding: C -1. The subject property is located in the Commercial Recreational and Marine (CM) Zoning District, and eating and drinking establishments classified as "Food Service, Late Hours" require the approval of a conditional use permit. C -2. As conditioned, the project will comply with Zoning Code standards for eating and drinking establishments. Conditions are included related to on -sale alcoholic beverage activities, including the training of personnel, and the provision of security personnel while live entertainment is offered. C -3. Pursuant to Chapter 5.25 of the NBMC, the project has been conditioned to require the applicant, and any future operator of the eating and drinking establishment, to obtain an Operator License from the NBPD in order to maintain operating hours beyond 11:00 P.M. Tmplt 03/08/11 City Council Resolution No. 80 3- Thirty -3 Waterfront Restaurant (PA2011 -041) Conditional Use Permit No. UP2011 -041 Paae 4 of 13 Finding: 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: D -1. The project has been reviewed and conditioned to ensure that potential conflicts with the surrounding land uses are minimized to the extent possible to maintain a healthy environment for both residents and businesses. D -2. Adequate parking is maintained on -site and provided by complimentary valet service during all hours of operation. D -3. The location of the valet parking pick -up and drop -off area, and the designated smoking area, is shielded from the residences by the restaurant building, thereby mitigating noise impacts from this activity. D -4. The design and construction materials of the outdoor dining patio prevent excessive noise from emanating from this area. As conditioned, the sound attenuating windows are required to be closed from 7:00 p.m. to 8:00 a.m. A condition of approval is included requiring that recorded music or other types of sound amplification within the outdoor patio area shall only be audible to the audience within the patio area, and shall cease after the hour of 10:00 p.m. daily. 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: E -1. This is an existing eating and drinking establishment that has existed in this location since 1968, and the project site has proven to be physically suitable in size to accommodate the use. E -2. The project site is located at the southwest corner of Bayside Drive and East Coast Highway, and is surrounded by similar commercial uses located to the west, and the southeast of the use. This is an appropriate location for an eating and drinking establishment. The use is complementary to the existing commercial uses in the area, as well as the residential uses located to the south of the project site. Tmplt: 03/08/11 City Council Resolution No. 2011 -80 3- Thirty -3 Waterfront Restaurant (PA2011 -041) Conditional Use Permit No. UP2011 -041 Paqe 5 of 13 E -3. The Traffic Engineer has previously reviewed the configuration of the parking lot, as well as the valet parking plan, and has determined the parking lot design functions safely and does not prevent emergency vehicle access to the establishment. E -4. The site is currently served by public services and utilities. 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: F -1. The project has been reviewed and conditioned to ensure the continued operation of the existing eating and drinking establishment will not be detrimental to the community. F -2. An increase in pedestrian and vehicular activity from patrons using the outdoor dining area during late night and early morning hours may occur. However, impacts from this increase in activity would be mitigated due to the location of the existing valet parking pick -up and drop -off area, and the designated smoking area, which are shielded from residences on Linda Isle by the restaurant building. F -3. The applicant has operated the existing eating and drinking establishment in this location since 2004, and has demonstrated the continued willingness and ability to control noise generated by patrons of the restaurant. The applicant will be required to obtain an Operator License from the NBPD in order to extend the hours of operation of the outdoor dining patio to 1:00 a.m. The Operator License will provide for enhanced control of noise, loitering, litter, disorderly conduct, parking /circulation, and other potential disturbances resulting from the existing establishment, and will provide the NBPD with means to modify, suspend, or revoke the operator's ability to maintain late - hour operations if objectionable condition occur. SECTION 4. DECISION. NOUN, THEREFORE, BE IT RESOLVED: 1. The City Council of the City of Newport Beach hereby approves Conditional Use Permit No. UP2011 -041, reversing the decision of the Planning Commission. Approval of Use Permit No. UP2011 -041 shall be subject to the conditions set forth in Exhibit A, which is attached hereto and incorporated by reference. Tmplt: 03/08/11 City Council Resolution No. 2011 -80 3- Thirty -3 Waterfront Restaurant (PA2011 -041) Conditional Use Permit No. UP2011 -041 Pape 6 of 13 2. This resolution supersedes Use Permit No. 3325 (amended) and Planning Commission Resolution No. 1724, which upon vesting of the rights authorized by this Conditional Use Permit No. UP2011 -007, shall become null and void. 3. This resolution was approved, passed and adopted at a regular meeting of the City Council of the City of Newport Beach, held on the 28th day of June, 2011. ATTEST: CITY CLERK �Y Tmplt: 03/08/11 MAYOR City Council Resolution No. 80 3- Thirty -3 Waterfront Restaurant (PA2011 -041) Conditional Use Permit No. UP2011 -041 Paae 7 of 13 EXHIBIT "A" CONDITIONS OF APPROVAL (Project- specific conditions are in italics) PLANNING 1. 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. 2011 -007 shall expire unless exercised within 24 months from the date of approval as specified in Section 20.54.060 of the Newport Beach Municipal Code (NBMC), unless an extension is otherwise granted. 3. The hours of operations shall be limited to between 9:00 a.m. and 11:00 p.m. daily, unless the applicant/operator, including any future operator, secures and maintains an Operator License issued by the Chief of Police, pursuant to Chapter 5.25 of the NBMC. In no case shall the interior portion of the eating and drinking establishment be permitted to operate beyond the hour of 2:00 a.m. daily. The outdoor dining patio shall not be permitted to operate beyond the hour of 1:00 a.m., daily. 4. The Outdoor Dining Patio shall be subject to the following requirements: a. Require the outdoor dining patio to be attenuated to the same sound level as the main restaurant building when all exterior openings are closed. The plans for modifying the patio shall be reviewed and certified by an acoustical engineer as meeting the same sound attenuation levels as the main restaurant building subject to the review and approval by the Community Development Director. Subsequent to construction, the installation shall be tested by an acoustical engineer and certified as to meeting city code noise standards. b. Require the applicant to fund a quarterly monitoring test and report by an acoustical engineer selected by the Community Development Director as to meeting city codes. The monitoring shall include a minimum of one Thursday, Friday, or Saturday between the hours of 10:00 p.m. and 1:00 a.m. of operation until the one -year review by the Planning Commission. The monitoring program shall be subject to the review and approval of the Community Development Director. At least one such monitoring test shall take place during the months of July or August. Code compliance includes compliance with Municipal Code Chapter 10. 26, Community Noise Control. c. Require that the outdoor patio windows and roof openings be closed at the currently required time of 7:00 p.m. daily. d. Extend the outdoor dining patio hours of operation from 9:00 a.m. to 1:00 a.m. Tmplt: 03/08/11 City Council Resolution No. 80 3- Thirty -3 Waterfront Restaurant (PA2011 -041) Conditional Use Permit No. UP2011 -041 Paqe 8 of 13 e. Require that the conditional use permit be reviewed by the Planning Commission one year from the date of this approval to ensure the increased hours of operation on the outdoor dining patio have not resulted in detrimental impacts. 5. All doors and windows of the interior of the eating and drinking establishment shall remain closed at all times except for the ingress and egress of patrons and employees. 6. The Operator License required to be obtained pursuant to Condition No. 3 and Chapter 5.25 may be subject to additional and /or more restrictive conditions to regulate and control potential late -hour nuisances associated with the operation of the establishment. 7. Full meal service shall be provided and available for ordering at all times the establishment is open for business. 8. The outdoor dining area shall be used in conjunction with the eating and drinking establishment. No special events /promotional activities shall be allowed within the area of the outdoor dining patio. 9. The outdoor dining patio shall be limited to 636 square feet in area. 10. The outdoor dining area shall be limited to a maximum of 37 seats, including disabled seats /table space. The seating and dining in the outdoor dining patio shall be limited to dining table height (approximately 30 inches) and the use of the elevated counters and barstools is prohibited. 11. All employees shall park on on -site. 12. The net public area of the interior portion of the eating and drinking establishment shall not exceed 2,560 square feet. 13. A minimum of 34 parking spaces shall be provided on -site for the daytime operation of the eating and drinking establishment Monday through Friday. A total of 64 parking spaces shall be provided on -site for all other hours of operation of the establishment (one parking space for each 40 square feet of net public area). 14. Prior to implementation of the late hours on the outdoor dining patio, the applicant/operator shall submit a valet parking plan for review and approval by the Public Works Department and Community Development Department/Planning Division. The valet parking plan shall demonstrate that adequate on -site parking, vehicular circulation and pedestrian circulation systems are provided. The valet parking plan shall include the location of valet parking pick -up and drop -off area so as to be shielded from nearby residences on Linda Isle by the subject restaurant building in order to minimize the transmission of noise to Linda Isle to the maximum extent feasible. The parking plan Tmplt: 03/08111 City Council Resolution No. 80 3- Thirty -3 Waterfront Restaurant (PA2011 -041) Conditional Use Permit No. UP2011 -041 Paoe 9 of 13 shall include a waiting /queuing area for guests dropping off or picking up automobiles from valet parking and a designated smoking area for patrons of the restaurant. 15. The applicant/operator shall conspicuously post and maintain signs at all outdoor dining, waiting, smoking and parking areas indicating to patrons the proximity of the restaurant and public dock and boat slip areas to the residential areas, requesting patrons be courteous to residential neighbors while outside the establishment. 16. The project is subject to all applicable City ordinances, policies, and standards, unless specifically waived or modified by the conditions of approval. 17. The applicant/operator 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. 18. The applicant/operator shall maintain a copy of the most recent City permit conditions of approval on the premises and shall post a notice that these are available for review on the premises. The posted notice shall be signed by the permittee. 19. This approval was based on the particulars of the individual case and does not in and of itself or in combination with other approvals in the vicinity or Citywide constitute a precedent for future approvals or decisions. 20. 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. 21. Approval of Conditional Use Permit No. 2011 -007 is for the operation of an eating and drinking establishment defined as "Food Service, Late Hours" per Title 20 of the NBMC, and does not permit or authorize the use or operation of a bar, tavern, cocktail lounge, nightclub or commercial recreational entertainment venue. 22. Any change in operational characteristics, expansion in area, or other modification to the approved plans, shall require an amendment to this Conditional Use Permit or the processing of a new Conditional Use Permit. 23. The type of alcoholic beverage license issued by the California Board of Alcoholic Beverage Control shall be a Type 47 in conjunction with the service of food as the principal use of the facility. Any upgrade 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. Tmplt: 03/08111 City Council Resolution No. 80 3- Thirty -3 Waterfront Restaurant (PA2011 -041) Conditional Use Permit No. UP2011 -041 Paae 10 of 13 24. All landscaped areas shall be maintained in a healthy and growing condition and shall receive regular pruning, fertilizing, mowing and trimming. All landscaped areas shall be kept free of weeds and debris. All irrigation systems shall be kept operable, including adjustments, replacements, repairs, and cleaning as part of regular maintenance. 25. Water should not be used to clean paved surfaces such as sidewalks, driveways, parking areas, etc. except to alleviate immediate safety or sanitation hazards. 26. The washing of the outdoor dining patio with any cleaning solutions or the use of high pressure or steam cleaning devices is prohibited. 27. Lighting shall be in compliance with applicable standards of the Zoning Code. The site shall not be excessively illuminated based on the luminance recommendations of the Illuminating Engineering Society of North America, or, if in the opinion of the Community Development Director, the illumination creates an unacceptable negative impact on surrounding land uses or environmental resources. The Community Development Director may order the dimming of light sources or other remediation upon finding that the site is excessively illuminated. 28. All noise generated by the existing eating and drinking establishment use shall comply with the provisions of Chapter 10.26 and other applicable noise control requirements of the Newport Beach Municipal Code. The maximum noise shall be limited to no more than depicted below for the specified time periods unless the ambient noise level is higher: 29. The applicant shall retain a qualified engineer specializing in noise /acoustics to monitor the sound generated by the outdoor dining activity to insure compliance with these conditions, if required by the Community Development Director. 30. The applicant/operator of the facility shall be responsible for and shall actively control any noise generated by the subject facility including, but not limited to, noise generated by patrons, food service operations, and mechanical equipment. 31. Should the property be sold or otherwise come under different ownership, any future Tmplt: 03108/11 Between the hours of Between the hours of 7:00 a.m. and 10:00 p.m. 10:00 p.m. and 7:00 a. m. Measured at the property line of commercially zoned property: 65 dBA 60 dBA Measured at the property line of residentially zoned property: 55 dBA 50 dBA Measured in the interior of a 45 dBA 40 dBA residential structure 29. The applicant shall retain a qualified engineer specializing in noise /acoustics to monitor the sound generated by the outdoor dining activity to insure compliance with these conditions, if required by the Community Development Director. 30. The applicant/operator of the facility shall be responsible for and shall actively control any noise generated by the subject facility including, but not limited to, noise generated by patrons, food service operations, and mechanical equipment. 31. Should the property be sold or otherwise come under different ownership, any future Tmplt: 03108/11 City Council Resolution No. 80 3- Thirty -3 Waterfront Restaurant (PA2011 -041) Conditional Use Permit No. UP2011 -041 Paqe 11 of 13 owners or assignees shall be notified of the conditions of this approval by either the current business owner, property owner or the leasing agent. 32. No live entertainment shall be allowed in the interior of the eating and drinking establishment unless the operator has first obtained a permit from the City. 33. No outside paging system or loudspeaker device shall be used in conjunction with this establishment. 34. No live entertainment shall be permitted in the outdoor dining area. Recorded music or other types of sound amplification within the outdoor dining area shall only be audible to the audience within this area, and shall cease after the hour of 10:00 p.m.. daily. 35. No dancing shall be allowed on the premises of the eating and drinking establishment. 36. The applicant/operator shall provide licensed security personnel while offering live entertainment. A comprehensive security plan for the permitted uses shall be submitted for review and approval by the Newport Beach Police Department (NBPD). The procedures included in the plan and any recommendations made by the NBPD shall be implemented and adhered to for the life of the Conditional Use Permit. 37. All trash shall be stored within the building or within dumpsters stored in the trash enclosure (three walls and a self - latching gate) or otherwise screened from view of neighboring properties, except when placed for pick -up by refuse collection agencies. The trash enclosure shall have a decorative solid roof for aesthetic and screening purposes. 38. Trash receptacles for patrons shall be conveniently located both inside and outside of the establishment, however, not located on or within any public property or right -of- way. 39. 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 debris and graffiti from the premises and on all abutting sidewalks within 20 feet of the premises. 40. The applicant /operator 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 Code Enforcement 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). 41. 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 Community Development Director, and may require an amendment to this Use Permit. Tmpit: 03/08/11 City Council Resolution No. 80 3- Thirty -3 Waterfront Restaurant (PA2011 -041) Conditional Use Permit No. UP2011 -041 Paqe 12 of 13 42. Storage outside of the building in the front or at the rear of the property shall be prohibited, with the exception of the required trash container enclosure. 43. A Special Events Permit is required for any event or promotional activity outside the normal operational characteristics of the approved use, as conditioned, or 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 to require such permits. 44. Kitchen exhaust fans shall be installed /maintained in accordance with the Uniform Mechanical Code. The issues with regard to the control of smoke and odor shall be directed to the South Coast Air Quality Management District. 45. All exists shall remain free of obstructions and available for ingress and egress at all times. 46. Strict adherence to maximum occupancy limits is required. 47. The use of private (enclosed) "VIP" rooms or any other temporary or permanent enclosures separate from public areas are prohibited. 48. All owners, managers and employees selling, serving or giving away 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. The establishment shall comply with the requirements of this section within 180 days of the issuance of the certificate of occupancy. 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. 49. Any event or activity staged by an outside promoter or entity, where the restaurant owner or his 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. 50. No alcoholic beverages shall be consumed on any property adjacent to the licensed premises under the control of the license. 51. No "happy hour" type of reduced price alcoholic beverage promotion shall be allowed except in conjunction with food service available from the full service menu. There shall be no reduced price alcoholic beverage promotion after 9:00 p.m. Tmplt: 03708/11 City Council Resolution No. 80 3- Thirty -3 Waterfront Restaurant (PA2011 -041) Conditional Use Permit No. UP2011 -041 Pace 13 of 13 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 or sale of drinks is prohibited. 53. The quarterly gross sales of alcoholic beverages shall not exceed the gross sales of food and retail sales during the same period. The licensee shall maintain records that reflect separately the gross sale of food and the gross sales of alcoholic beverages of the licensed business. Said records shall be kept no less frequently than on a quarterly basis and shall be made available to the NBPD on demand. 54. No on -site radio, television, video, film or other media broadcasts from the establishment that includes the service of alcoholic beverages shall be permitted without first obtaining an approved Special Event Permit issued by the City. This prohibition of media broadcasts includes recordings to be broadcasted at a later time. 55. All signs shall be in conformance with the provisions of Chapter 20.42 of the Newport Beach Municipal Code. 56. 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. 57. No games or contests requiring or involving the consumption of alcoholic beverages shall be permitted. 58. To the fullest extent permitted by law, applicant/operator 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 3- Thirty -3 Waterfront Restaurant including, but not limited to, the Use Permit No. 2011 -007. 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 proceeding whether incurred by applicant/operator, City, and /or the parties initiating or bringing such proceeding. The applicant/operator 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. The applicant/operator shall pay to the City upon demand any amount owed to the City pursuant to the indemnification requirements prescribed in this condition. Tmplt: 03/08/11 STATE OF CALIFORNIA } COUNTY OF ORANGE } SS. CITY OF NEWPORT BEACH } I, Leilani I. Brown, 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. 2011.80 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 28th day of June, 2011, and that the same was so passed and adopted by the following vote, to wit: Ayes: Hill, Rosansky, Selich, Daigle, Mayor Henn Noes: Gardner, Curry Absent: None Abstain: None IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the official seal of said City this 29th day of June, 2011. 4. �4 Q City Clerk Newport Beach, California (Seal) _ N 1 A Y