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HomeMy WebLinkAbout2008 CON Fred Demeo DBA Trophy Lounge - Settlement Release WaiverSETTLEMENT AGREEMENT This Settlement, Release and Waiver Agreement ("Agreement") is entered into between the CITY OF NATIONAL CITY (hereinafter "City") and FRED DEMEO, INC., doing business as the TROPHY LOUNGE (hereinafter "Trophy Lounge"). The City and Trophy Lounge are sometimes referred to collectively hereinafter as the "Parties". 1. INTRODUCTION The City instituted an enforcement action against the Trophy Lounge for failure to have a valid business license while operating in 2007 and 2008, claiming that the business was operating as an illegal, nonconforming use. An evidentiary hearing before the City Planning Commission was set and the Trophy Lounge filed an appeal of the action. This matter is currently pending before the City of National City Planning Commission and has voluntarily been continued pending negotiations between the parties. The City also commenced voluntary nuisance abatement discussions with the Trophy Lounge in 2006 and again in April 2008, due to the claim that criminal activities and other violations had been occurring at the property. The appeal and the actions will be referred to collectively hereafter as the "Actions". After negotiations in good faith, it is the desire of the Parties to resolve their differences through settlement of the Actions rather than through litigation at this time, including all claims and liabilities in connection with the Actions asserted in the business license action, or which could be raised in same, or which arise from or relate to the Actions and to avoid the incurring of additional costs and expenses arising out of litigation of the Actions. In addition, except as to the obligations as may be created by this Agreement, it is the desire of the Parties to settle any and all claims, disputes and/or liabilities whether known or unknown which the Parties have or may have against each other whether or not said claims, demands and/or liabilities relate to, or in any way are connected with, the current Actions. This excludes rights to proceed with other actions after the operative period for new damages. The operative period is defined as ninety days after the full execution of this Agreement and for any extensions thereafter. The Parties enter into this Agreement to fully settle and discharge all disputed civil claims and actions upon the terms and conditions set forth herein. 2. NO ADMISSION OF LIABILITY It is expressly understood, acknowledged, and agreed to by the Parties that, by reason of entering into this Agreement, the Parties do not admit, expressly or impliedly, any fact or liability of any type or nature with respect to the Actions, whether or not referred to herein, or the sufficiency of any claims made or that could have been raised by any party, allegations, assertions, or the positions of any party. Furthermore, the Parties have not made any such admission and this Agreement is entered into solely by way of compromise and settlement. 3. ACTIONS AGREED The Trophy Lounge agrees to implement the following within 10 days of signing this Agreement (unless a greater time period is indicated herein): • Pay all fees and penalties for their business license account and arrears. Upon payment, the business license will be reinstated retroactively for the period in question. • Continue to offer dancing at a minimum on weekend nights. • Expand food service for customers, to the extent reasonably possible under other regulations for food service in Type 48 bars within Trophy Lounge's sole and reasonable discretion. Nothing contained in this paragraph is intended to require Trophy Lounge to install a kitchen. • Will not use or hire outside third party music production companies. • Usage of at least 10 oz. size drink glasses for all mixed drinks. • No pitchers of beer or other alcoholic beverages. • No straight double shots of standard liquor pours (distinguished from concoction styles or on the rocks drinks). • Current training of all employees through Licensee Education on Alcohol and Drugs, Responsible Alcohol Beverage Service, or RBSS within a reasonable time of each employee starting employment. • No "Two for One" or "Shot and a Beer" specials. • No shots or other double -shot type drinks after 1:00 a.m. • No re-entry after 1:00 a.m. • At I :00 a.m., the music and lighting will change to relax the atmosphere. • Stagger closing sections toward closing time. • Security to nightly assist in dispersing crowd upon closing until all patrons are dispersed from within perimeter and from nearby parking lots and for thirty minutes thereafter. • Weekend nights, special events, and holidays to have clothing -marked, Guard Card or industry trained, security personnel on staff (approximately 4 to 6), with at least one of them being female. • Weekend nights, special events, and holidays to have at least one designated person as Bar Monitor on staff with authority to implement sobriety testing to patrons. • Permit all employees to contact law enforcement when they deem it necessary, without fear of reprisal from the company. • Maintain at all times surveillance cameras on site, inside, that will hold data for at least 7 days, and which will be made accessible to law enforcement as reasonably requested. All law enforcement requests for information shall be made within 6 days of event. All Trophy Lounge Settlement Agreement Page 2 requests for information shall be made to owner representative Mike Lee. (Trophy Lounge to have up to 90 days to further upgrade this system). • Maintain at all times a camera that takes photos of patrons and their identification upon the patron's entrance, with data to be held for 7 days. (Trophy Lounge to have up to 45 days to upgrade this system). • Post signs throughout the establishment of various policies, including sobriety, dress code, and loitering. • Owner or business Officers of the Trophy Lounge to visit site at least twice per week, including one weekend night during operating hours. • Occupancy levels not to exceed posted fire maximum occupancy at any given time. • Apply for a taxicab stand for in front of business (within 30 days). • Do not permit smoking within 20 feet of door to business and provide a portable corral at least 20 feet from the entrances to the business. (Trophy Lounge to have up to 30 days to provide portable corral.) • Trophy Lounge is currently under contract with Arnold Schmidt to redevelop its site as part of a residential/commercial development proposed by Arnold Schmidt (New Development). The New Development has yet to receive final approvals from the City of National City and a specific plan amendment will be needed to accommodate the New Development as proposed. In the event that the New Development has been disapproved or abandoned by December 31, 2008, then the owners of the Trophy Lounge will either (1) apply for a new Conditional Use Permit (CUP); or (2) resurrect a CUP for a free standing site previously applied for; or (3) propose an alternative use. Such new CUP, or alternative use, shall be fully processed no later than December 31, 2009. If premises to remain open after 12/31/08, Trophy Lounge to begin esthetic extension. • Reinstitute and fully enforce the Dress Code agreed to by the owners of the Trophy Lounge in 2006, as attached. The City agrees to do the following: • Permit the Trophy Lounge to obtain a business license, after payment of the outstanding fees and penalties. • Allow the Trophy Lounge to operate daily except Mondays and Wednesdays shall only be used for private events and the premises shall not be open to the general public. If Trophy Lounge wishes to make changes to this schedule, Trophy Lounge is to notify the City at least 7 days prior. • This Agreement for voluntary abatement efforts is valid for an operative period of 90 days from signing the Agreement. The City of National City has the sole option to renew the voluntary abatement portion of this action thereafter. In the event that the City of National City does not renew this Agreement, then Trophy Lounge shall be released from the stated terms of this Agreement, subject to a reservation of rights by the City to reinstitute abatement actions if such becomes necessary in the future. The City of Trophy Lounge Settlement Agreement Page 3 National City may choose to pursue non -voluntary abatement actions, such as in Superior Court, or other remedies available at any time, subject to the following: 1. If during the 90 day period or for any extension period for this Agreement Trophy Lounge is in full compliance with the terms and conditions herein, then such action against it will not be brought. 2. If within the 90 day period the City solely determines that this Agreement has not been satisfactorily complied with, the City will give Trophy Lounge and its counsel 7 days written notice of any claimed breach or deficiencies. If Trophy Lounge fails to cure the same within such 7 day period, then the City may pursue any actions or remedies within the 90 day period of this Agreement, without regard to any bar to all remedies available. 3. If after the expiration of the Agreement and its extensions, if any, the City determines thereafter to file an abatement action in court or pursue other remedies, the City will give Trophy Lounge and its counsel 7 days written notice of any claimed deficiencies and the City may thereafter pursue all legal and equitable remedies. The City's action, however, to pursue such abatement will be based upon the Trophy Lounge engaging in new conduct that gives rise to the need for an abatement action, in conjunction with the past history of alleged misconduct. 4. RELEASE In consideration of this Agreement herein, Trophy Lounge hereby fully and forever completely releases, acquits, and discharges the City of National City, together with any and all past and present employees, agents (whether ostensible or actual), officers, officers' successors, departments, or representatives, (collectively "Releasees") from any and all claims, demands, damages, wages, loss of future employment capacity, costs, attorneys' fees, assessments, rights or causes of action, whether known or unknown, present or future which each may have against the Releasees, or any of them, that arise from, or are directly or indirectly related to, or are connected with the Actions. 5. EXECUTION By execution of this Agreement, the parties agree to dismissal of the evidentiary hearing and subsequent appeal rights related to the business license issuance to the Trophy Lounge by the City. 6. WAIVER OF SECTION 1542 As to the matters released by this Agreement, the Parties expressly waive all rights under Section 1542 of the California Civil Code and of any comparable principle of law, whether by statute or decision. Section 1542 provides as follows: "A general release does not extend to the claims which the creditor does not know or suspect to exist in his favor at the time of the execution of the release, which if known by him must have materially affected his settlement with the debtor." Trophy Lounge Settlement Agreement Page 4 This Release expressly includes a discharge of all unknown and unsuspected claims. Trophy Lounge understands and acknowledges the consequences of such a specific waiver. 7. NO PRIOR ASSIGNMENT OR TRANSFER Each Party to this Agreement represents and warrants that there has been no assignment or other transfer of any claims or causes of action which they are releasing pursuant to the terms of this Agreement. 8. INDEMNIFICATION The Trophy Lounge and its attorney have agreed to release any and all claims and demands, rights, and causes of action of any kind that may now have arisen or hereafter may arise as a result of the Actions. In furtherance thereof, Trophy Lounge agrees to hold the City harmless, and to indemnify it for and against any claim, lien, or debt which has risen, or may arise, from the Actions described herein. 9. MISCELLANEOUS PROVISIONS A. Entire Agreement: This Agreement constitutes the full and entire Agreement of the claims between the Parties hereto, and such Parties acknowledge that there are no other claims, agreement, oral and/or written, between the Parties hereto. B. Authority to Enter Agreement: This Agreement is the result of arms -length negotiations. Each Party to this Agreement represents and warrants to the others that the persons executing this Agreement on behalf of such Party are duly and fully authorized to do so, and that each such Party is acting pursuant to the power and authority granted by their respective principals, and that no further approvals are required to be obtained from any persons or entities. C. Final Agreement: The Parties to this Agreement, and each of them, acknowledge that (1) this Agreement and its reduction to final form is the result of extensive good faith negotiations between the Parties through their respective counsel; (2) said counsel has carefully reviewed and examined this Agreement for execution by said Parties, or any of them; and (3) any statute or rule of construction that ambiguities are to be resolved against the drafting Party should not be employed in the interpretation of this Agreement. D. Binding Agreement: This Agreement is and shall be binding upon and shall inure to the benefit of the predecessors, affiliates, subsidiaries, successors, assigns, parties, agents, officers, employees, shareholders, associates, legal representatives, heirs, executives and/or administrators of each of the Parties hereto. Trophy Lounge Settlement Agreement Page 5 E. Attorneys' Fees, Costs, and Future Action: Trophy Lounge and the City shall each bear their own costs, expert fees, and attorneys' fees in connection with the claim, the Actions, and this Agreement. F. Interpretative Law: This Agreement is made and entered into in the State of California and shall in all respects be interpreted, enforced and governed by and under the laws of the State of California. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable for whatever reason, the remaining provisions not so declared shall nonetheless continue in full force and effect without being impaired in any manner whatsoever. G. Modifications: This Agreement may be amended or modified only by a writing signed by all Parties to this Agreement. Modifications affecting the rights or obligations of the City of National City shall first be approved by the City Council. IL Paragraph Headings: Paragraph headings are for reference only and shall not affect the interpretation of any paragraph hereto. I. No Inducement: Each of the Parties to this Agreement acknowledges for itself that it has read this Agreement and fully understands its contents and consequences and has voluntarily executed it. Each of the parties also warrants that no promise or inducement has been made or offered by any of the Parties, except as set forth herein, and that this Agreement is not executed in reliance upon any statement of representation of any of the Parties or their representatives, concerning the nature and extent of the injuries, damages or legal liability thereof. The Parties further represent that they have been represented by legal counsel during the course of the negotiations leading to the signing of this Agreement, and that they have been advised by legal counsel with respect to the meaning of this Agreement and its legal affect. J. Counterparts This Agreement may be executed in counter -parts with the same effect as if all original signatures were placed on one document and all of which together shall be one and the same Agreement. Trophy Lounge Settlement Agreement Page 6 K. Additional Documents: All Parties agree to cooperate fully to take any and all steps, perform any acts, and execute any documents consistent with the terms and conditions of this Agreement, which may be needed or required to effectuate the terms, intent, conditions, covenants, and provisions hereof L Venue: Venue for interpretation and enforcement of this Agreement shall be in the Superior Court of the State of California, County of San Diego, South County Division. In the event a dispute arises related to the interpretation or enforcement hereof, no further exhaustion of administrative remedies shall be required prior to bringing suit. WE HEREBY CERTIFY THAT WE HAVE READ ALL OF THIS SETTLEMENT, RELEASE, AND WAIVER AGREEMENT AND FULLY UNDERSTAND THE SAME, AND IN WITNESS WHEREOF WE HAVE EXECUTED THIS AGREEMENT IN CALIFORNIA, SIGNED, SEALED AND DELIVERED. CITY OF NATIONAL CITY CHRIS ZAPAT City Manager FRED DEMEO, INC. (dba TROPHY LOUNGE) (Two signatures requirr a corporation) (Si Name: /l Lr,i6"6 Title: Name: Title: V f rES/oeN`r APPROVED AS TO FORM: APPROh ED S TO F JO. DOUCETTE, ESQ. JOHN S , ESQ. • Trophy Lounge Settlement Agreement Page 7 Senior Assistant City Attorney Attorney for Trophy Lounge DATED: i DATED: gS Trophy Lounge Settlement Agreement Page 8 TROPHY LOUNGE DRESS CODE After 8pm everyday the following are NOT allowed: - No ball caps - Plain white, red, or blue t-shirts - Excessively baggy clothes - Sweatpants, pajamas, nylon or workout pants - Underwear tank tops / wife beaters (any colors) - No exposed, heavy neck chains / jewelry - Velour sweat suits - Jerseys of any kind - Wearing sunglasses We reserve the right to refuse service to anyone.