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HomeMy WebLinkAbout10/19/1995 - Adjourned Regular MeetingCITY OF NEWPORT BEACH ADJOURNED COUNCIL MEETING PLACE: Council Chambers MINUTES ROLL CALL L0 Q Q W F-Q0 cl: 3C]2U r Cn W W W >W -d7O H TIME: 5:00 P.M. DATE: Ocfober19,1995 INDEX P40nt x x x x x x x ROLL CALL Motion x Reading of Minutes of Meeting of October 9, 1995, was All Ayes waived, approved as written and ordered filed. Motion x Reading In full of all ordinances and resolutions under All Ayes consideration was waived, and City Clerk was directed to read by titles only. Council Member Edwards reported that last weekend the Balboa - Beach to Bay - Run for Clean Water event estimated net proceeds of over $14,000 which will be equally divided between the Newport Surfrider Foundation and the City; the City's half will be used to partially fund the City's share of the Coastal Water Testing program. He expressed appreciation to the various local merchants and individuals who helped with this event, and noted that approximately 600 persons participated. CONSENT CALENDAR Motion x The following Items were approved except for those Hems All Ayes removed: ORDINANCE(S) FOR INTRODUCTION Schedule for public hearing on November 13, 1995: 1. Removed from the Consent Calendar 2. Adopt Resolution No. 95 -117 declaring intention to Res 95 -117 establish the Newport Beach RESTAURANT (27) IMPROVEMENT DISTRICT. [Refer to report w /agenda item 1 ] 3. Removed from the Consent Calendar. 4. Approve agreement with the County of Orange CNB /Orange regarding POLITICAL SUBDIVISIONS FOR THE County /Emerg PURPOSE OF DEVELOPING AN OPERATIONAL AREA Srvs AS REQUIRED BY THE EMERGENCY SERVICES ACT. C -3072 [Report from Fire and Marine Chief] (38 ) S. Adopt Resolution No. 95 -119, authorizing the Special Event TEMPORARY CLOSURE OF MARIGOLD AVENUE Apl #95 -340 between East Pacific Coast Highway and the first Res 95 -119 alleyway to the southeast, and the southern (6 5 ) portion of the alleyway parallel to East Pacific Coast Highway, on the ocean side of the highway running between Marigold and Marguerite Avenues; and approve SPECIAL EVENTS APPLICATION No. 95 -340 for HEALTH EMPORIUM /CORONA DEL MAR HEALTH FAIR, in conjunction with the grand opening on Saturday, October 28, 1995 from 1:00 - 10:00 p.m., subject to the conditions in the staff report from the Recreation Manager, Community Services Department. Volume 49 - Page 470 CITY OF NEWPORT BEACH ROLL CALL 3 Q3Q F— pq U, ca =°Uo x > o w z - - -- - - -- October 19, 1995 INDEX • 6. CLAIMS - For Denial by the City Manager. (3 6 ) Paul D. Diamond alleging personal injuries, property damage, loss of wages, etc., as a result of traffic accident at Pacific. Coast Highway near Superior Avenue on April 12. 1995. Kimberly Hale alleging City Police Department kicked open and damaged door of rented home at 247 Cedar Street on September 30, or October 1, 1995; seeking reimbursement of $150 to $200. Richard Jamieson alleging City vehicle backed into the front of his vehicle and caused damage on September 20, 1995 at Prospect Street; seeking reimbursement of $1,150 for car repair and car rental. Wolfgang Kovach alleging he was legally parked in the 30th Street parking lot on August 8, 1995, but received a parking citation; seeking reimbursement of $72.30 plus $250 for mental anguish. ® Masanori M. Kumamoto alleging property damage at Evening Star on October 4, 1995 as a result of City truck hitting claimant's parked vehicle. L & R Electric Service Company, Inc., seeking indemnity from claim filed by Gina Billings who sustained injuries to her right foot as a result of accident near 2537 West Pacific Coast Highway on June 11, 1994. Paul Meszesan alleging fire damage as a result of large dip in street at Westcliff and Irvine Avenues on October 6, 1995. Merle Moshir alleging loose gravel flew up and cracked windshield of vehicle on Pacific Coast Highway near Cappy's Restaurant on September 28,1995; seeking reimbursement. ITEMS REMOVED FROM THE CONSENT CALENDAR 1. Report from Planning Department regarding Restaurant proposed ORDINANCE Imprvm Dist (27) TO ESTABLISH THE NEWPORT BEACH RESTAURANT IMPROVEMENT DISTRICT. Volume 49 - Page 471 CITY OF NEWPORT BEACH MINUTES ROLL CALL U� Q Q¢WW0 W F- 3Q2(�00 ¢ } (9 W W > OZ -J, ~ W October 19, 1995 INDEX • Dan Marcheano, President, Newport Beach Restaurant Association, stated they have a marketing plan to promote Newport Beach as a destination dining area. As everyone is aware, there are a tremendous amount of restaurants opening up in Irvine, Costa Mesa, Huntington Beach, etc., and what they are hoping to do is bring people "back to the Newport Beach beach area." They are promoting their plan with the Newport Beach Convention Bureau, and urge approval of the subject Ordinance. Rush Hill, Chairman, Economic Development Committee, stated they are in full support of the proposed Restaurant Improvement District; the analysis they have done to date acknowledges that the competition of Newport Beach is very important to the City's economic future; they believe the formation of this District is just the beginning of what they must do inasmuch as over the next 18 months they anticipate three major elements of competition coming on line in neighboring cities that will make it even more difficult for the City's restaurants to compete; the ® Committee looks at the proposed Restaurant Improvement District as a start to address the seriousness of that necessity, and therefore, urge the proposed Ordinance be introduced. Richard Luehrs, President, Newport Harbor Area Chamber of Commerce, stated they are in support of the proposed Ordinance and are encouraging their 126 members in the restaurant business to also support this District by not protesting at the public hearing on November 13. Motion x There being no further comments, motion was Ord 95 -55 All Ayes made by Council Member Cox to introduce Ordinance No. 95 -55 and schedule for public hearing on November 13, 1995. 3. Report from General Services Director Commercial recommending adoption of a resolution declaring waste Hauler: intention to conduct a public hearing on (44) November 13, 1995 at 7 p.m., to consider the granting of non - exclusive franchises for COMMERCIAL SOLID WASTE HAULERS WITHIN THE CITY OF NEWPORT BEACH. The City Manager noted that since the distribution of this item in the Agenda packets, the subject Resolution has been modified as follows: Volume 49 - Page 472 CITY OF NEWPORT BEACH ILVA i10111s uri-OLS ROLL CALL a 3�MAxoz W Cr M W U.1 U L 0 0 October 19, 1995 INDEX • (e) Page 2 now reads: Franchisee shall indemnify Commercial and hold harmless City from environmental waste Haulers liability for the franchisee's operations in the City and payment of $3 /ton towards purchase of insurance against environmental liability and /or into an environmental liability fund. (I) Page 2 now reads: City authority to annually audit haulers' financial records relating to the payment of fees required under the franchise. (1) Page 4 now reads: Ware Disposal, Judith Ware, President. The City Manager stated that staff has been meeting with the current solid waste commercial haulers in the City regarding the proposed non- exclusive franchise, and noted there will be a public hearing on this matter on November 13. Madelene Arakelian, South Coast Refuse, addressed the Council and distributed informational material relating to Solid Waste. • Dolores Offing, 5 Star Rubbish, addressed the Council and stated that even though she has been offending the informal meetings with City staff and other commercial haulers regarding the proposed non - exclusive franchise, she felt the requirements which they must comply with are still somewhat vague relative to minimum qualifications and indemnification, and therefore, recommended the public hearing not be scheduled until November 27 rather than November 13. She also suggested that the County of Orange indemnify all the cities that use their landfills. The City Manager stated that the draft Ordinance on this subject will be available to the haulers the end of next week for their review and input when the staff meets with them again. The Ordinance will then be introduced on November 13, following the public hearing, and can be amended at that time if deemed appropriate. In response to question raised by Council Member • Edwards regarding the County indemnifying the cities who use their landfills as suggested by Ms. Offing, the City Manager commented that the Los Angeles County Sanitation District who owns the Volume 49 - Page 473 CITY OF NEWPORT BEACH MT NTTTF.0 ROLL CALL ;�WW0 LilMM2000 ¢ � > -J w October 19, 1995 y INDEX • landfills in that County is considering a proposal of offering indemnification to the cities in Los Angeles County. This same proposal will also be discussed at a meeting of the Solid Waste Commission of Orange County next week which he will be attending. Motion x Hearing no further comments, motion was made Res 95 -118 Ayes x x x x x x by Mayor Pro Tern Debay to adopt Resolution No. Abstained x 95 -118 and to schedule public hearing on November 13,199S. PUBLIC HEARING(S) 7. Mayor Hedges opened the public hearing Ord 95 -49 regarding proposed ORDINANCE NO. 95 -49, CdM Business Imprvm Dist ESTABLISHING THE CORONA DEL MAR (27) BUSINESS IMPROVEMENT DISTRICT. Report from Planning Department. The City Clerk advised that after the agenda was • printed, a letter was received from the Corona del Mar Chamber of Commerce requesting this item be deferred for the reasons enumerated in their letter. Council Member O'Neil advised that he has met With representatives from the Corona del Mar Chamber of Commerce and the merchants over the last several days, and he feels they do have a plan of organization that will satisfy many of the concerns of the business establishments that are opposed to the formation of the District or how it would be governed; however, the plan will take awhile to implement through certain amendments to the Chambers' bylaws. Therefore, in lieu of this protest hearing, it has been suggested that the Council defer action in forming the Corona del Mar Business Improvement District to allow the Chamber to amend its bylaws and come back with a plan of reorganization that satisfies the concerns of all of the participants. Motion x In view of the foregoing, proposed Ordinance No. All Ayes 95 -49 was not adopted and motion was made by • Council Member O'Neil that further action to establish the Corona del May Business Improvement District be terminated and re- initiated at the appropriate time to allow additional time for the Corona del Mar Chamber of Commerce, business owners, and City staff to resolve the concerns that have been expressed by members of the Corona del Mar business community. Volume 49 - Page 474 CITY OF NEWPORT BEACH MT NIT TTF.q ROLL CALL A¢WW0 Lil 3 ¢ M Li 2 U > °Z C7 w O October 19, 1995 INDEX ® Two individuals addressed the Council (no names given) and received clarification of the Council's action. 8. Mayor Hedges opened the public hearing Ord 95 -50 regarding proposed) ORDINANCE NO. 95 -50, Marine Av /BI Business ESTABLISHING THE MARINE AVENUE (BALBOA Imprvm Dist ISLAND) BUSINESS IMPROVEMENT DISTRICT. (27 ) Report from Planning Department. It was noted that on September 25, 1995 the City Council adopted a Resolution of Intention to establish the Marine Avenue Business Improvement District. It is estimated that this District would generate approximately, $23,000 per year from assessments on businesses. These funds would be used for improvements and advertising to promote business in this area. The Resolution of Intention also appointed the Board of Directors of the Balboa Island Business Association as the Advisory Board for the allocation of funds collected from • this assessment. Prior to establishment of the District a protest hearing must be held. If protests are received from business owners representing 50 percent or more of the total assessment amount the proceedings to establish the District must be discontinued for at least one year. If protests represent less than 50 percent of the total assessment the City Council may establish the District. The proposed Marine Avenue District includes approximately 90 businesses in a two block area; the business owners on the street petitioned the City to form the District to promote business activities; the proposed assessment would be two- times the current business license tax which is typically in the range of $200 to $300 up to a maximum of $1,000. To date, the City has received protests from eight (8) businesses which represents 8% of the total proposed assessment. Reference was also made to the revised copy of the proposed Ordinance which had contained a clerical error. John Noyes, Chairman of the Balboa Island Business Improvement District Advisory Board, addressed the Council and stated the reason they wanted to establish the District on Marine Avenue is to not fall behind the competition; their marketing plan is to reach out to Southern California and try and get people to come back to Balboa Island; they want to promote and Volume 419 - Page 475 CITY OF NEWPORT BEACH MINUTES ROLL CALL v, Q n(rWW0oZ �' W �cD XwwOJ` 3g2e�C70 ¢ r w w >w ~ October 19, 1995 INDEX • beautify Marine Avenue and sponsor some community events; they have a plan to allow everyone in the District to give the Advisory Board their input and suggestions as to how the Board spends the money; this is a new ground for them and it is a difficult process; he distributed a copy of their 1995 -96 Business Improvement District Budget which included printing costs for new brochures, Christmas lighting, Community Pride Day Parade, Local Advertising and Beautification of Marine Avenue, i.e., upgraded trash receptacles, benches and plantings. Mr. Noyes requested the Council consider changing the assessment method and assess the individuals on their base rate of the business license rather than on the number of employees they have, and to exclude independent contractors (beauty operators) from any assessment. Hearing no others wishing to address the Council, the public hearing was closed. n x Motion was made by Council Member Waft to adopt Ordinance No. 95 -50 (as revised due to clerical error) to establish the Marine Avenue Business Improvement District. In response to question raised by Mayor Pro Tern Debay regarding the requested changes by Mr. Noyes, Mr. Douglas stated that under State law, the Council can reduce the assessment for any affected business; the changes suggested by Mr. Noyes would be a reduction in the assessment, and it is legal for the Council to make those changes as part of their action at this time. In view of the foregoing, Mayor Pro Tern Debay asked the maker of the motion if she would accept the changes requested by Mr. Noyes to which Council Member Waft replied in the affirmative. All Ayes The motion, as amended, was voted on and carried. 9. Mayor Hedges opened the continued public U/P 1956 (A) hearing regarding USE PERMIT NO. 1956 (AMENDED) Thunderbird for the THUNDERBIRD CLUB AT 3505 VIA OPORTO. Club (88) Report from City Attorney. Volume 49 - Page 476 CITY OF NEWPORT BEACH I�F)i116110 1i ROLL CALL ' ���0 Q�Wwo LdXM w U w >w °Z U 0 October 19, 1995 INDEX • Inasmuch as the legal counsel for the Thunderbird Club had not arrived as yet, Mayor Hedges proceeded with the Agenda. Motion x At this time, motion was made by Council Member All Ayes O'Neil to reconsider Consent Calendar Item 5. 5. Report from the Recreation Manager, Community Temp Closure Services Department, recommending adoption of Marigold/ a resolution authorizing the TEMPORARY CLOSURE Special Event OF MARIGOLD AVENUE and approval of Special Apl #95 -340 Events Application No. 95 -340. Seth Siegel and Toda Pavia, owners of the new Health Emporium in Corona del Mar, addressed the Council and asked for clarification of the Council's action regarding their request. Council Member O'Neil advised that the Council had approved the Special Event application as well as Temporary Street Closure of Marigold Avenue for Saturday, October 28 from 1:00 to 10:00 p.m., on the Consent Calendar earlier in the • meeting. The Council complimented Mr. Siegel and Mr. Pavia on their new endeavor and extended best wishes and good kick in their business. Motion x Motion was made by Council Member O'Neil to All Ayes adopt Resolution No. 95 -119 authorizing the temporary closure of Marigold Avenue between East Pacific Coast Highway and the first alleyway to the southeast, and the southern portion of the alleyway parallel to East Pacific Coast Highway, on the ocean side of the highway running between Marigold and Marguerite Avenues, and approve SPECIAL EVENTS APPLICATION No. 95 -340 for HEALTH EMPORIUM /CORONA DEL MAR HEALTH FAIR, in conjunction with the grand opening on Saturday, October 28, 1995 from 1:00 - 10:00 p.m., subject to the conditions in the staff report. PUBLIC COMMENTS o Dolores Offing, 17 Hillsborough, addressed the Council regarding the proposal she read about in the newspaper relative to Newport Beach taking over the • Costa Mesa Library system. She stated she felt this action would only result in hiring more people and paying more salaries. She also discussed Library use by outside residents, and suggested the City consider charging $10.00 per Library card for outside residents. Volume 49 - Page 477 ROLL CALL / 1 �J Son All Ayes • CITY OF NEWPORT BEACH v, >_ 'n w 'X w J October 19, 1995 Q X I— F Q M C7 P > 0 W Z M¢ L,J 3q=UL90 W W O J, e Council Member Walt gave a brief update on the Irvine Ranch Water District's Waste Water Project noting that she would like this matter placed on the November 13 Council meeting for action. She stated the Harbor Quality Committee has been meeting relative to the hiring of experts to review the EIR, etc., and they have also met with the City of Irvine and Irvine Ranch Water District to analyze what is being done about the low -flow diversion system. The Harbor Quality Committee at their meeting this afternoon recommended that the City Council adopt a resolution on November 13 of non - support for any relcaimed water coming into the bay or its tributaries. ORDINANCE(S) FOR ADOPTION 10. Proposed ORDINANCE NO. 95 -54, LEVYING SPECIAL TAXES WITHIN THE CITY OF NEWPORT BEACH SPECIAL IMPROVEMENT DISTRICT NO. 95 -1 ( CIOSA). Recycled report from Administrative Services Director. X Motion was made by Council Member O'Neil to adopt Ordinance No. 95 -54. Inasmuch as the legal counsel for the Thunderbird Club (Agenda Item 9) still had not arrived as vet, the Council adjourned to Closed Session at 6:05 P.m.. and reconvened at 6:35 p.m. 9. Mayor Hedges opened the continued public hearing regarding USE PERMIT NO. 1956 (AMENDED) for the THUNDERBIRD CLUB AT 3505 VIA OPORTO. The City Attorney announced that Michael Montgomery, legal counsel for the Thunderbird, had arrived and agreed that September 25, 1995 was the last day for submitting evidence relative to this matter. The City Attorney stated he has prepared Proposed Findings of Fact and Conclusions of Law that summarize the evidence that he believes supports the determination that the Thunderbird Club has violated conditions of the Use Permit and their business practices have resulted in a significant number of violations of State and local law by Thunderbird patrons. I I Volume 419 - Page 478 MINUTES INDEX Ord 95 -54 CIOSA Special Imprvm Dist (68) U/P 1956(A) Thunderbird Club CITY OF NEWPORT BEACH MINUTES ROLL CALL fm Q¢wwooz W 3g2UCJ.70 Q U W w October 19, 1995 INDEX • Mr. Montgomery stated he was not prepared to Thunderbird respond to the 11 -page Proposed Findings and Club Conclusions prepared by the City Attorney, but did wish to request a reasonable extension in order for the owners to transfer the premise to a restaurant use. He stated he has discussed this proposal with City staff in good faith and has already had one restaurant operator look at the property. Mayor Hedges noted that the City Council has taken public testimony on this matter for the last several months, the Administrative Record is quite complete, and the Proposed Findings and Conclusions prepared by the City Attorney were also not given to the City Council prior to this meeting. The City Attorney stated that he has had some conversations with Mr. Montgomery regarding his proposal, but he has repeatedly told him that he has not talked to the City Council about this matter, that he does not feel he has the legal authority to do that as he felt it would violate the due process rights of Mr. Montgomery's clients. As to the proposed Findings and Conclusions he has prepared, he stated it is a summary of the documents that have been previously submitted by his office and should not come to any surprise to Mr. Montgomery as it represents nothing more than a written form of comments on the evidence. Mr. Montgomery stated that he was not complaining about the proposed Findings and Conclusions, but was hoping that his clients and the City could agree that the present operation at the Thunderbird Club be phased out with something more acceptable to the City Council, and in this way, his clients will not lose their investment which is substantial. Motion x Mayor Hedges commented that this matter has been ongoing since May 1993 when the original Use Permit was approved, but specifically since June 1994 when the Use Permit was revoked with a Stay; there have been several months of hearings; the Administrative Record is quite lengthy; he does not feet it would be productive to continue this matter further from his standpoint; and therefore, • moved to hear Mr. Montgomery's closing argument. Council Member Glover indicated her support of Mayor Hedges above motion. Volume ,49 - Page 479 CITY OF NEWPORT BEACH MINUTES ROLL CALL q Q¢WW w:KPXU(D0 ¢ U) °�? m � J w October 19, 1895 INDEX • Council Member Edwards asked the City Attorney Thunderbird if he thought it would be viable to delay this matter Club for the purpose of resolution, to which the City Attorney stated he did not have a position in this regard. The City Attorney added that Mr. Montgomery is suggesting there be a continuance for a period of time to allow his clients to transfer the Use Permit to an individual or entity that has experience in operating a restaurant and would operate this particular facility as a restaurant emphasizing the sale of food with entertainment being ancillary to the food. The City Attorney advised, however, that he has not seen any written proposal, but is willing to discuss this further with a Council appointed ad -hoc committee if that is the desire of the Council. Mr. Montgomery submitted a letter for the record from a restaurant operator who viewed the Thunderbird premises yesterday; he also indicated he would like to propose the thought whereby the revocation would become final without the possibility of a court review after a certain period of time; however, if this matter is closed this ® evening, "there is nothing to sell, there will be litigation, and the landlord suffers as well as the area." He also stated that he waives any objection to the City Attorney taking a position of attempting to assist the Council in regards to his clients' recent proposal. The City Attorney stated the modified conditions imposed by the Council in 1994 were imposed with the understanding that if this business were operated as a restaurant there would not be the same demands on the Police and it would not have the impacts on adjoining landowners or nearby residents that have occurred in the last eleven months. The Thunderbird has not been operating as a restaurant as mandated back in June 1994. Also, if there is a determination to revoke the Use Permit and there is litigation, he thinks it is fair to say that it will be difficult for the City to obtain a court order immediately terminating the operation. If it is still the desire of the Council to have the Thunderbird Club operate as a legitimate restaurant, which appears to be the ultimate decision to the problem, it will take some time to implement. Volume 49 - Page 480 CITY OF NEWPORT BEACH MINUTES ROLL CALL W) W Q 3 gmWwoU0 W 1-a: ~ 3g2CJC70 r a" W 0 W >W -J ~ , October 19,1995 INDEX Discussion ensued wherein Mr. Montgomery Thunderbird indicated he would stipulate to a revocation of Club the Use Permit immediately if the Thunderbird could remain in enforcement for a period of time, and he would also stipulate to the findings and Conclusions and waive his right of appeal, if the Council were to allow him a specific amount of time (preferably one year) with which to transfer the Use Permit to a legitimate restaurant operator. He added that his clients need some time to market the property and he felt the facility shows better open than closed. Council Member Glover indicated she felt the Thunderbird Club "was playing with the City Council like a yo -yo" and called for the question on Mayor Hedges motion. The City Attorney noted that the Council has another Closed Session item to discuss this evening which he stated he does not need to attend, and therefore, suggested he meet with Mr. Montgomery during that break to discuss the specific aspects of • his proposal and how it might benefit all parties. In response to the comment made by Council Member Glover, Mr. Montgomery stated it was not their intent to "run one by you tonight, we are at the end of the line and if we make a deal tonight and you stipulate to a revocation without going to court, there is no escape or second chance from that." At this time the meeting adlourned to Closed Session and reconvened 15 minutes later. The City Attorney stated that following his discussion with Mr. Montgomery, it was agreed that: 1) there would be a determination of the City Council to revoke the Use Permit; 2) the City Attorney's office would be authorized to file a Superior Court action to enjoin operations with the understanding that the City would be authorized to enter into an agreement with the Thunderbird that would Stay the revocation that would be implemented by Superior Court judgment; 3) the Stay would last for 150 days; 4) the Thunderbird Club would be required during that time to enter • into escrow with a bona fide restaurant operator, Volume .49 - Page 481 CITY OF NEWPORT BEACH MINUTES ROLL CALL U, Cl: Q 3CrUJW0oz q¢ W H 3q=UC70 Q W C 7 W O W > J• W October 19, 1995 INDEX • 5) the determination of whether that individual or Thunderbird entity is a bona fide restaurant operator shall be Club left with the City Manager at his sole discretion; 6) the new bona fide restaurant owner shall operate in strict compliance with all conditions of the Use Permit, including the condition that requires the gross sales of food to exceed the gross sales of alcohol; 7) in the interim, there would be weekly meetings between the Thunderbird management and the Police Department to review and resolve problems that have occurred the preceding seven days ;, 8) the City would enforce all conditions of the Use Permit except for the condition that requires gross sales of food to exceed gross sales of alcohol; and 9) the City could ask the court to enjoin the operators during the 150 day period in the event of any material violation of the conditions to the Use Permit. Mr. Montgomery stated that his clients are in agreement with the above, and that he would disclose to the new operator his or her rights under the Use Permit so there would not be a • misunderstanding again in the future. The City Attorney stated that the Stipulation and Agreement would be executed within seven days from the date on which the action for injunction was filed. There would also be a condition requiring the current permittee to use all due diligence to close the escrow within a reasonable time so there would not be any potential for delay. The Agreement would be memorialized in part by way of Mr. Montgomery's consent to it before the City Council at this time, and it would then be memorialized in the Stipulated Judgment that would be signed within seven days of the filing of the lawsuit. The role of the City Manager would be to determine that the transferee was a bona fide restaurant operator and that said transferee proposed an operation at the location that was in full compliance with the benefit of the bargain the Council made with Bacchus 1 -1/2 years ago, and that is, that the facility function as a restaurant, and not a nightclub and hotspot, which emphasizes the sale of food with entertainment provided ancillary to the principal use. • In view of the foregoing, Mayor Hedges withdrew his motion. Volume 49 - Page 482 CITY OF NEWPORT BEACH MINUTES ROLL CALL A Q gQwWO W F an=UOO C [: 0 o > °? W October 19, 1995 INDEX • Discussion ensued wherein the City Attorney stated Thunderbird the 150 days referred to in the foregoing begins on Club the date the City submits to Mr. Montgomery the Stipulated Judgment for signature in conjunction with the lawsuit. The Agreement also provides that if there is no transfer of operation within 150 days to a bona fide restaurant operator, the Use Permit Stay is lifted and there is no right of appeal and no right to contest the grant of a permanent injunction against the operation. Mr. Montgomery. stated that on behalf of his clients, he accepts the above conditions. The City Attorney stated that if the subject proposal is approved, the Thunderbird has 150 days to sell their business from the date they sign the Stipulated Judgment to a bona fide restaurant operator approved by the City Manager. He also stated there would be a provision in the Stipulation that requires his office to review and approve the disclosure statement. The City Attorney also noted that in the event during the 150 days, the City believes there are violations that wan-ant court action, the City has the right to go into court and ask the Judge to immediately grant an injunction. Mr. Montgomery would have the right to contest that, but the City would have a built -in opportunity to go to court within a relatively short period of time to get an order to cease the operation. Motion x Following discussion, Mayor Hedges moved to concur with the above Agreement as outlined by the City Attorney and Mr. Montgomery. Council Member Edwards asked if for some reason Mr. Montgomery did not sign said Agreement, would this record and Agreement be enforceable, and if so, he would make a motion to this effect. In view of the foregoing comment, Mr. Montgomery suggested the Council continue the adoption of the record to November 13 so that if he has not signed the necessary document by that time, then he has breached the Agreement and the Council can adopt the record. Motion x Mayor Hedges moved to wtfhdraw his previous All Ayes motion and to continue this hearing to November 13 for resolution. Volume 49 - Page 483 ROLL CALL • • • CITY OF NEWPORT BEACH MINUTES ¢ 3 W3a=°L90 F-p y Cr w (9 Q w >w 0z October 19,1995 I Meeting adjourned at 7:35 p.m. NEXT REGULAR CITY COUNCIL MEETING WILL BE NOVEMBER 13 194 . The agenda for this meeting was posted on October 13, 1995, at 4:15 p.m, on the City Hall Bulletin Board located outside of the City of Newport Beach Administration Building. Mayor ATTEST: Y City Clerk I 7 � ..9�e.cosara Volume 49 • ?age 484 NDEX