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HomeMy WebLinkAbout2014-85 -Upholding the Planning Commission's Approval of Conditional Use Permit No. UP2012-009 to Operate the Port Theater (A Landmark Theater) in Conjunction with a Type 47 (On-Sale General) Alcohol License Located at 2905 East Coast Highway (PA2014-019)RESOLUTION NO. 2014 -85 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH UPHOLDING THE PLANNING COMMISSION'S APPROVAL OF CONDITIONAL USE PERMIT NO. UP2014 -030 SUPERSEDING MINOR USE PERMIT NO. UP2012 -009 TO OPERATE THE PORT THEATER (A LANDMARK THEATER) IN CONJUNCTION WITH A TYPE 47 (ON -SALE GENERAL) ALCOHOL LICENSE LOCATED AT 2905 EAST COAST HIGHWAY (PA2014 -019) THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. 1. An application was filed by Pand Realty, LLC, with respect to property located at 2905 East Coast Highway, requesting approval of a conditional use permit. The property is legally described as Lot 1, Block G, Tract 323, in the City of Newport Beach, County of Orange, State of California, as shown on a map recorded in Book 14, Pages 40 and 41 of miscellaneous maps, records of Orange County, California. Excepting therefrom the portion of the 14 -foot alley abutting said Lot 1 on the southwest, vacated by the City of Newport Beach. Also excepting therefrom the following: beginning at the most westerly corner of said Lot 1; thence northeasterly along the northwesterly line of said lot, a distance of 50 feet to a point; thence southeasterly along a line parallel with the rear or alley line of said lot and the prolongation thereof to its intersection with the southerly line of said lot; thence westerly along the southerly line of said lot to its intersection with the rear or alley line of said lot; thence northwesterly along said rear or alley line of said lot to the point of beginning. 2. The applicant requests a conditional use permit to supersede Minor Use Permit No. UP2012 -009, for the Port Theater, to allow alcohol service to be served throughout the theater (both the first and second level) during all cinematic screenings. The applicant also requests an extension of hours for alcohol service until 1:00 a.m., daily. The existing theater operates from 8:00 a.m. to 2:00 a.m., daily, with alcohol service from 8:00 a.m. to 11:00 p.m., daily. The Port Theater currently has a Type 47 (On -Sale General) Alcoholic Beverage Control License in conjunction with food service at a landmark theater. Alcohol service during shows is currently limited to the mezzanine or to screenings limited to patrons 21 years of age and older. Due to the late hours of operation, approval of an amendment to the Operator's License by the Newport Beach Police Department will be required. 3. The subject property is located within the Commercial Corridor (CC) Zoning District and the General Plan Land Use Element category is Corridor Commercial (CC). 4. The subject property is located within the coastal zone. The Coastal Land Use Plan category is Corridor Commercial (CC-8). City Council Resolution No. 2014 -85 Page 2 of 13 5. A public hearing was held on August 11, 2014, in the Council Chambers at 100 Civic Center Drive, Newport Beach. 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 at this meeting and the Planning Commission approved Use Permit No. UP2014 -030 based on the findings and conditions of approval in Planning Commission Resolution No. 1954. 6. On August 12, 2014, the Planning Commission's decision to approve Use Permit No. UP2014 -030 was called up for review by City Council Member Nancy Gardner. The appeal was filed to review the authorized hours for alcohol service and suitability with the surrounding neighborhood. 7. A public hearing was held on September 23, 2014, in the City Council Chambers at 100 Civic Center Drive, Newport Beach. 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, and affirmed and upheld the Planning Commission's decision and approved Use Permit No. UP2014 -030. 8. Pursuant to Section 20.95.060.C, the public hearing was conducted "de novo," meaning that it is 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. This project has been determined to be categorically exempt under the requirements of the California Environmental Quality Act under Class 1 (Existing Facilities). 2. The proposed project involves the expansion of hours and service areas for on -site alcoholic beverage service within an existing theater. Therefore, the use qualifies for a categorical exemption under Class 1. SECTION 3. REQUIRED FINDINGS. Alcohol Service In accordance with Section 20.48.030 (Alcohol Sales) of the Newport Beach Municipal Code, the following findings and facts in support of the findings for a use permit are set forth: Finding A. The use is consistent with the purpose and intent of Section 20.48.030 (Alcohol Sales of the Zoning Code. City Council Resolution No. 2014 -85 Page 3 of 13 Facts in Support of Finding 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 alcohol is intended for the convenience of theater patrons. Operational conditions of approval recommended by the Police Department relative to the sale of alcohol will ensure compatibility with the surrounding uses and minimize alcohol related impacts. 2. Due to the high concentration of commercial land uses, the calls for service, crime rate, and number of arrests are greater than adjacent reporting districts containing residential uses. 3. The theater's location in Corona del Mar is in close proximity to sensitive residential land uses. Conditions of approval have been developed to ensure that the design and security of the theater are properly addressed. 4. Several existing restaurants in Corona del Mar provide alcohol service as an amenity to customers. The number of alcohol licenses and the type of alcohol service proposed is typical and expected to be found in a commercial corridor such as Corona del Mar. The movie theater does not have any current objectionable operating conditions. 6. The provision of food service and alcohol sales will not substantially change the operational characteristics of the movie theater. 7. The on -site consumption of alcohol provides a public convenience by allowing the sale of alcohol in addition to other concession items offered for sale. In finding that the proposed use is consistent with Section 20.48.030 (Alcohol Sales) of the Zoning Code, the following criteria must be considered: The crime rate in the reporting district and adjacent reporting districts as compared to other areas in the City. The establishment is located within Police Department Reporting District 44 (RD 44). Due to the high concentration of commercial land uses, the calls for service, number of arrests, and crime rate are greater than adjacent residential Reporting Districts. The theater is located in the heart of Corona del Mar and East Coast Highway bisects RD44. Corona del Mar State Beach is also located in this reporting district, which draws thousands of visitors annually. While the crime rate is higher than adjacent residential reporting districts, the crime rate for RD 44 is lower than the Citywide crime rate and the Newport Beach Police Department does not consider the number significant given the type of development within this Reporting District. ii. The numbers of alcohol - related calls for service, crimes, or arrests in the reporting district and in adjacent reporting districts. City Council Resolution No. 2014 -85 Pape 4 of 13 1. Due to the high concentration of commercial land uses, the calls for service, crime rate, and number of arrests for RD 44 are greater than for adjacent residential reporting districts; however, the Newport Beach Police Department does not consider the number significant given the type of development within this Reporting District. iii. The proximity of the establishment to residential zoning districts, day care centers, hospitals, park and recreation facilities, places of worship, schools, other similar uses, and any uses that attract minors. 1. Residentially zoned properties are located 60 feet west of the subject property on Heliotrope Avenue. The project site is not in close proximity to a daycare center, hospital, or park. Sherman Gardens is located approximately 780 feet to the north of the subject property. Corona del Mar State Beach and the Oasis Senior Center are located approximately 1,500 feet to the west and east, respectively. The nearest church, Community Church Congregational of Corona Del Mar, is located 375 feet to the northeast of the subject property on Heliotrope Avenue across East Coast Highway. The nearest school, Harbor View Elementary School, is located 1,000 feet to the northeast of the subject property. The proposed use is surrounded by other commercial retail and office uses along East Coast Highway. Corona del Mar is generally characterized by a high number of visitors, in which commercial and residential zoning districts are located in close proximity to one another. iv. The proximity to other establishments selling alcoholic beverages for either off -site or on -site consumption. 1. There are four other establishments in the vicinity that provide alcohol service to patrons. These include the Port Restaurant, The Place, Pirozzi, and Mayur. While the landmark theater is located in close proximity to other businesses selling alcoholic beverages, it is a destination point for Corona del Mar, the use is different than other establishments selling alcoholic beverages, and the service of alcoholic beverages is acceptable for this location. v. Whether or not the proposed amendment will resolve any current objectionable conditions. 1. The extended alcohol service hours and service areas are an expansion of the existing cinema operations. There are currently no objectionable conditions on -site related to the service of alcohol for cinematic screenings. Alcohol service for public events other than cinematic screenings will continue to end at 11:00 p.m. with alcohol service areas restricted to the mezzanine. Service for public events will be permitted throughout the theater for 21 and over events. Alcohol service for private events (e.g., weddings, private parties, etc.) is not limited under this use permit and the use is regulated as a principal use of the landmark theater under the Municipal Code. City Council Resolution No. 2014 -85 Paae 5 of 13 2. The theater is adjacent to a highly - traveled commercial area along East Coast Highway. The establishment serves residents and visitors within the vicinity. The expansion of alcohol service hours during cinematic screenings will complement the food service and provide convenience to patrons of the theater. The expanded alcohol service areas will also provide convenience to patrons in the theater who wish to sit in the lower portion of the theater with their families. Conditional Use Permit In accordance with Section 20.52.020.F (Findings and Decision) of the Newport Beach Municipal Code, the following findings and facts in support of the findings for a conditional use permit are set forth: Finding B. The use is consistent with the General Plan and any applicable specific plan; Facts in Support of Finding 1. The General Plan Land Use Element designates the subject property as Corridor Commercial (CC), which is intended to provide a range of neighborhood- serving retail and service uses along street frontages that are located and designed to foster pedestrian activity. The existing landmark theater is consistent with the land uses permitted in the CC land use designation. 3. The expansion of alcohol service for cinematic screenings at the existing landmark theater is compatible with the land uses permitted within the surrounding neighborhood. 4. The food and alcohol concessions for the movie theater are compatible with the existing and allowed land uses in Corona del Mar. 5. 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 1. The zoning designation for the subject property is Commercial Corridor (CC), which is intended to provide for areas appropriate for a range of neighborhood - serving retail and service uses along street frontages that are located and designed to foster pedestrian activity. City Council Resolution No. 2014 -85 Page 6 of 13 2. The existing landmark theater is a permitted use within the CC zoning district and is consistent with the standards of the Landmark Structures Ordinance. Alcohol sales with late hours (after 11:00 p.m.) are allowed upon the approval of a Conditional Use Permit by the Planning Commission. The proposed changes to the alcohol service at the movie theater are compatible with other uses within Corona del Mar. 3. The existing movie theater was constructed in 1949 as a single- screen cinema designed to seat more than 900 people. The theater therefore qualifies as a Landmark Theater under Section 20.38.070 (Landmark Structures) of the Zoning Code. 4. The required off- street parking for the current theater is less than the required off- street parking prior to its remodel when the number of seats was reduced. The proposed amendment does not change or increase the parking requirement. 5. The project has been conditioned to limit objectionable conditions resulting from the service of alcohol at the theater and is required to comply with all applicable Municipal Code regulations. The proposed use is consistent with the standards and permit requirements of Section 20.48.030 (Alcohol Sales) of the Zoning Code. 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 The allowed uses in the vicinity include residential, retail, office, and restaurant commercial uses. The existing theater with extended alcohol service hours and service areas are consistent with these surrounding land uses. 2. The remodeled theater is consistent with the requirements of Section 20.38.070 (Landmark Structures) of the Zoning Code, where parking demand, seating, and occupant loads are well below that prior to the remodel of the theater. Thus, on -site parking is not required for the theater use to continue. 3. A theater has operated in this location since 1949. The theater was recently remodeled and reopened in July of 2012. The movie theater has provided food service in the past and demonstrated the location's capability of operating as a compatible use with other land uses in the vicinity. 4. Alcohol service for cinematic screenings with the theater will be restricted to the hours between 8:00 a.m. and 1:00 a.m., daily. Alcohol service for all other public events within the theater will be restricted to the hours between 8:00 a.m. and 11:00 p.m., daily. Alcohol service for private events (e.g., weddings, private parties, etc.) is not limited City Council Resolution No. 2014 -85 Paae 7 of 13 under this use permit and the use is regulated as a principal use of the landmark theater under the Municipal Code. 5. All sales or service of alcoholic beverages in the licensed premises shall be made only from the concession bars or servers. 6. The operational conditions of approval recommended by the Police Department relative to the sale of alcoholic beverages will ensure compatibility with the surrounding uses and minimize alcohol related impacts. The project has been conditioned to ensure that the business remains a theater and does not become a bar, club, or tavern. 7. The applicant has obtained Health Department approval. The establishment will comply with the California Building Code and requirements of the Alcoholic Beverage Control Department to ensure the safety and welfare of customers and employees within the establishment. 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; and Facts in Support of Finding The project site is located within an existing theater building. The lobby and theater screening rooms are designed and developed for food and beverage service. 2. Adequate public and emergency vehicle access, public services, and utilities are provided within the existing infrastructure. The theater renovation was checked for compliance with all life safety requirements during plan check and field inspections. Site access is provided by two public streets. Adequate public and emergency vehicle access, public services, and utilities are provided within the existing tenant space. 3. Tenant improvements are not required for the expansion of hours and service areas for alcohol service within the existing theater. The establishment will comply with all Building, Public Works, and Fire Codes. All ordinances of the City and all conditions of approval will be complied with. 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, a safety, or general welfare of persons residing or working in the neighborhood of the proposed use. City Council Resolution No. 2014 -85 Paqe 8 of 13 Facts in Support of Finding 1. The project has been reviewed and includes conditions of approval to ensure that potential conflicts with the surrounding land uses are minimized to the greatest extent possible. The operator is required to take reasonable steps to discourage and correct objectionable conditions that constitute a nuisance in parking areas, sidewalks, and areas surrounding the subject property and adjacent properties during business hours, if directly related to the patrons of the establishment. 2. Alcohol service within the theater will serve theater patrons. The proposed establishment will provide alcohol service as a public convenience to the surrounding neighborhood. The service of alcohol will provide an economic opportunity for the property owner to maintain a successful business that is compatible with the surrounding community. 3. Alcohol service for cinematic screenings will not be provided after 1:00 a.m., daily. Alcohol service for all public other events will not be provided after 11:00 p.m., daily, minimizing late night detrimental impacts to the neighborhood. Alcohol service for private events (e.g. weddings, private parties, etc.) is not limited under this use permit and the use is regulated as a principal use of the landmark theater under the Municipal Code. 4. The proposed changes will not change the principal movie theater use. 5. As a landmark theater, the establishment is not required to provide on -site parking and the proposed amendment does not change or increase the parking requirement. SECTION 4. DECISION. NOW THEREFORE, the City Council of the City of Newport Beach, California, hereby resolves as follows: SECTION 1: The City Council of the City of Newport Beach does hereby uphold and affirm the decision of the Planning Commission to approve Use Permit No. UP2014 -030 subject to the conditions contained in Exhibit 'A," which is attached hereto and incorporated by reference. SECTION 2: This resolution supersedes Planning Commission Resolution No. 1900, which upon vesting of the rights authorized by this Conditional Use Permit, shall become null and void. The facts in support of findings stated in Resolution No. 1900 are hereby incorporated by reference in that they address the overall service of alcohol. City Council Resolution No, 2014 -85 Paqe 9 of 13 SECTION 3: This resolution was approved and adopted at a regular meeting of the City Council of the City of Newport Beach, held on the 23d day of September, 2014, by the following vote, to wit: Sa I I Rush N. Hill, II, Mayor ATTEST: 46x Leilani I. Brown, City Clerk City Council Resolution No. 2014 -85 Paae 10 of 13 EXHIBIT "A" CONDITIONS OF APPROVAL (Conditions required by Minor Use Permit No. UP2012 -009, Resolution No. 1900, have been incorporated into the conditions herein) 1. The development shall be in substantial conformance with the approved site plan and floor plans stamped and dated with the date of this approval (except as modified by applicable conditions of approval). 2. This Conditional Use Permit may be modified or revoked by the Planning Commission upon a failure to comply with the conditions set forth in Chapter 20.48.030 (Alcohol Sales) of the Municipal Code, other applicable conditions and regulations governing alcohol service, or 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. 3. Any material 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 use permit. 4. This Conditional Use Permit shall expire unless exercised within 24 months from the date of approval as specified in Section 20.54.060 (Time Limits and Extensions) of the Newport Beach Municipal Code, unless an extension is otherwise granted. 5. Should the alcohol license be transferred, any future license holders, operators or assignees shall be notified of the conditions of this approval by either the current licensee, business operator, or the leasing company. 6. The project is subject to all applicable City ordinances, policies, and standards, unless specifically waived or modified by the conditions of approval., 7. The applicant shall comply with all federal, state, and local laws. Material violation of any of those laws in connection with the use may be cause for revocation of this Conditional Use Permit. 8. The appropriate Orange County Health Department permit is required for food and beverage service. 9. The approval is only for beer, wine, and liquor sales with the service of alcoholic beverages incidental to the theater use as defined in Condition No. 10, below. The type of alcoholic beverage license issued by the California Department of Alcoholic Beverage Control shall be a Type 47 (On Sale General) in conjunction with the theater as the principal use of the facility. City Council Resolution No. 2014 -85 Page 11 of 13 10. Alcohol service and consumption for public events shall only be permitted in conjunction with the theater use (cinematic screenings, live entertainment, and other public and private events) and uses authorized by the Landmark Structures Ordinance (Section 20.38.070 of the Newport Beach Municipal Code) as the same may be amended from time to time. At no time shall stand alone alcohol service and consumption be permitted. This condition does not prohibit alcohol service and consumption during show intermissions and other routine breaks in entertainment and alcohol service shall cease at the end of all cinematic screenings. The applicant shall not license or grant a concession for the premises to an outside promoter or other event coordinator. 11. During cinematic screenings, the hours of alcohol service may be from 8:00 a.m. a.m. to 1:00 a.m. Alcohol service during public events outside of normal cinematic operations shall be from 8:00 a.m. to 11:00 p.m. Alcohol service hours for private events shall not be limited under this Conditional Use Permit. Any increase in the hours of operation shall be subject to the approval of an amendment to this Conditional Use Permit. 12. Prior to implementation of this Conditional Use Permit, the operator of the theater shall obtain an Operator License pursuant to Chapter 5.25 of the Municipal Code to ensure the business is operated in an appropriate manner. The Operator License may be subject to additional and /or more restrictive conditions to regulate and control potential late -hour nuisances associated with the operation of the theater. Future operators are required to obtain an Operator License prior to assuming management of the movie theater. 13. Prior to implementation of this Conditional Use Permit, a comprehensive security plan for the permitted uses shall be submitted to the Newport Beach Police Department for review and approval. 14. For public events, the alcoholic beverage sales concession shall be limited to a maximum of two concession areas; one located at the main lobby and the second located in the mezzanine bar area. 15. 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, which are clearly visible to the exterior, shall constitute a violation of this condition. 16. All persons selling 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. Records of each 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. City Council Resolution No. 2014 -85 Page 12 of 13 17. A Special Event Permit shall be required for any event or promotional activity that involves more than 350 occupants or operates outside the normal operational characteristics of the approved use, as conditioned, or that would attract large crowds, include any form of on -site media broadcast, or any other activities as specified in the Newport Beach Municipal Code to require such permits. 18. A maximum of one broadcast shall be permitted on the screens in the theater. 19. This approval does not permit the premises to operate as a bar, tavern, cocktail lounge or nightclub as defined by the Municipal Code, unless the Planning Commission first approves a new or amended Conditional Use Permit. 20. Alcoholic beverages shall be dispensed, sold, and served in containers that are easily distinguishable from non - alcoholic beverage containers. 21. The sale of alcoholic beverages for consumption off the premises shall be prohibited. 22. No more than two alcoholic beverages shall be sold or served to any one person during a single transaction. The delivery of alcoholic beverages to patrons inside the auditoriums shall be limited to two per patron per screening. Bottle service shall be prohibited with the exception of wine or champagne. 23. All sales or service of alcoholic beverages in the licensed premises shall be made only from the concession bars or servers. 24. During the period of time from the initiation of seating until the completion of the feature presentation, ambient lighting in the auditoriums shall remain at a level sufficient enough to allow a reasonable person to observe patrons who may be consuming alcoholic beverages. Existing floor lights in addition to reflected lights from the screen during movies or other on- screen presentations may meet this requirement. 25. Orders from patrons seated in theater seats must be made to the server serving that area and the alcoholic beverages ordered must be personally delivered to the patron by the server who took the order. 26. Servers shall not carry a supply of unordered alcoholic beverages. 27. The petitioner shall post and maintain professional quality signs with lettering no smaller than 2 inches in height that read, "No Alcoholic Beverages Beyond This Point' at all premise exits, subject to approval by the Planning Division. 28. The petitioner shall not share any profits or pay any percentage or commission to a promoter or any other person based upon monies collected as a door charge or cover charge, or any other form of admission charge, including minimum drink orders or the sale of drinks. This does not include ticket sales or any other fee for the standard movie theater use. City Council Resolution No. 2014 -85 Paqe 13 of 13 29. There shall be no dancing allowed on the premises at public events. 30. Strict adherence to maximum occupancy limits is required 31. The quarterly gross sales of alcoholic beverages shall not exceed the gross sales of food during the same period. The licensee shall at all times maintain records, which reflect separately the gross sales of food and the gross sales of alcoholic beverages of the licensed business. These records shall be kept no less frequently than on a quarterly basis and shall be made available to the Police Department on demand. 32. No exterior amplified music, public address speakers, outside paging system, loudspeaker, sound system, or other noise generating device shall be utilized in conjunction with this movie theater, except as may be allowed by a Special Event Permit. 33. The operator shall take reasonable steps to discourage and correct objectionable conditions that constitute a nuisance in parking areas, sidewalks and areas surrounding the premises and adjacent properties during business hours, if directly related to the patrons of the premises. 34. 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 walkways within 20 feet of the premises. 35. 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 Conditional Use Permit. 36. To the fullest extent permitted by law, the applicant shall indemnify, defend and hold harmless City, its City Council, its boards and commissions, officials, officers, employees, and agents from and against any and all claims, demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs, and expenses (including without limitation, attorney's fees, disbursements, and court costs) of every kind and nature whatsoever which may arise from or in any manner relate (directly or indirectly) to the City's approval of the Port Theater Alcohol Service including, but not limited to, Conditional Use Permit No. UP2014 -030 (PA2014 -019). 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, City, and /or the parties initiating or bringing such proceeding. The applicant shall indemnify the City for all of City's costs, attorneys' fees, and damages which City incurs in enforcing the indemnification provisions set forth in this condition. The applicant shall pay to the City upon demand any amount owed to the City pursuant to the indemnification requirements prescribed in this condition. 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. 2014 -85 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 23rd day of September, 2014, and that the same was so passed and adopted by the following vote, to wit: Ayes: Council Member Petros, Council Member Curry, Council Member Henn, Council Member Daigle, Mayor Pro Tem Selich, Mayor Hill Nays: Council Member Gardner IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the official seal of said City this 24th day of September, 2014. City Clerk Newport Beach, California (Seal)