HomeMy WebLinkAboutKMT INVESTMENT GROUP LLL, KELLI PERROTRECORDING REQUESTED BY
AND WHEN RECORDED MAIL
TO:
City of Santa Ana
Planning and Building Agency, M-20
20 Civic Center Plaza
PO Box 1988
Santa Ana, CA 92702
Recorded in Official Records, Orange County
Hugh Nguyen, Clerk -Recorder
11111�1111111111111111111111J1I111111111111111111111111111111111111111'111 NO FEE
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Return FULLLY EXECUTED (Space above Line for Use by Recorder)
0: p g A C i) Copy to COTC, M-30
CA. PtzesL,l�pa+-)tea' This document is exempt from the
CA 0 ] 2023 payment of a recording fee pursuant to
Government Code Section 61-032738,3
N-2023-300
CIVIL COMPROMISE AGREEMENT 1
This CIVIL COMPROMISE AGREEMENT (the "Agreement"), is made and entered i 4
into by and between KMT Investment Group LLC, Kelli Perrot and/or any assigned responsible lr�
party, including, but not limited to tenants and/or lessees (the "Proposed Operator") and the City 1
of Santa Ana (the "City").
RECITALS
WHEREAS, the Planning Commission conditionally approved Conditional Use Permit
No. 2019-07 (hereinafter referred to as the "CUP"), a copy of which is attached hereto as Exhibit
A, allowing for the sale of alcoholic beverages for on premise consumption under a Type 47
License ("ABC License") from the California Department of Alcoholic Beverage Control (the
"ABC") at the eating establishment, Culichi Town, located at located at 2158 South Bristol Street
Santa Ana, California (the "Property"), which was operated by Edgar Ascencio dba as Culichi
Town ("Former Operator"); and,
WHEREAS, on February 15, 2023, the City received information from ABC indicating
that Culichi Town's ABC License had been suspended and that ABC had sought disciplinary
action against the Former Operator; and,
WHEREAS, ABC and the Former Operator signed a settlement agreement suspending the
license for thirty (30) days and one hundred eighty(180) days to allow for a transfer of the ABC
License; and,
WHEREAS, the City obtained additional documentation related to the numerous
investigations against Culichi Towns' alcohol license and evaluated whether suspension or
revocation pursuant to Section 41-650.5 and Section 41-651 of the Santa Ana Municipal Code
(SAMC) was necessary; and,
WHEREAS, the Proposed Operator purchased the ABC License from the Former Operator
initiating the ABC License transfer with ABC and entering into a lease agreement for the Property;
and,
WHEREAS, the Proposed Operator and the City have, through extensive negotiations,
reached an agreement whereby the City determined initiating revocation of the CUP would not be
necessary based on terms and conditions of this Agreement and compliance therewith by Proposed
Operator; and,
WHEREAS, the intent of the parties is that the Property be operated in compliance with
CUP and the temporary modifications to conditions thereto as outlined and agreed to by the parties
in this Agreement; and,
WHEREAS, the Proposed Operator's notarized execution of this Agreement confirms its
ackriowledgment and acceptance of the temporary modified conditions as more fully defined
herein below and the risks associated with non-compliance with the same and/or the non -modified
conditions of the CUP.
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL PROMISES AND
COVENANTS CONTAINED HEREIN, THE PROPOSED OPERATOR AGREES AS
FOLLOWS:
SECTION 1. RECITALS. The Recitals above are true and correct and incorporated into
the body of this Agreement by this reference.
SECTION 2. COMPLIANCE WITH CUP AND TEMPORARY MODIFICATIONS
THERETO BY THIS AGREEMENT. The Proposed Operator agrees to comply with all
applicable conditions of the CUP and those temporarily modified by this Agreement as set forth
herein below ("Temporary Conditions").
SECTION 3. DURATION OF THIS AGREEMENT MODIFIED CONDITIONS The
following Temporary Conditions and this Agreement shall be applicable, and remain in full force
and effect for a period of twelve (12)-months following the City's issuance of a Certificate of
Occupancy and full and complete execution of this Agreement by the parties (the "Term").
SECTION 4. TEMPORARY CONDITIONS. For the Term of this Agreement, Proposed
Operator hereby agrees to perform and maintain the following Temporary Conditions:
4.1 Proposed Operator shall be entitled to provide entertainment but agrees to be
limited to, applying for, and at all times maintaining a valid Category 2 (see Sec
41-196.5 and Chapter 11 of the SAMC) Entertainment Permit with the City of Santa
Ana.
4.2 Business hours shall be limited to Monday through Thursday from 10:30 am to
10:00 pm and Friday through Sunday 10:30 am to 12:00 am (midnight) which shall
include all alcohol sales and entertainment. ("Business Hours")
4.3 During Business Hours as defined hereinabove, a hot meal shall be made available
for ordering by customers.
4.4 The Proposed Operator shall not operate nor maintain any of the Former Operator's
intellectual property, including but not limited to, business name, branding, etc., to
include the usage of the name and/or mark Culichi Town; and,
2
4.5 The Proposed Operator or the property owner shall ensure that a security guard be
present at the shopping center location to monitor activities in the parking lot and
in the immediate vicinity of the Property from 5:00 pm to close on weekdays and
from 10:30 am to close on weekends.
4.6 Proposed Operator shall ensure that, other than the normal opening and closing of
doors for access by customers and/or staff, doors shall remain closed during
Business Hours and throughout the duration of closing time operations to reduce
audible noise leaving the Property.
4.7 Proposed Operator shall be responsible to coordinate a quarterly meeting with staff
to review business operations and compliance with the terms and conditions of this
Agreement, the underline conditions of CUP and/or concerns and/or incidents, if
any.
SECTION 5. CITY OF SANTA ANA. The City of Santa Ana acknowledges and agrees
to the following:
5.1 The Agreement shall be valid, applicable and in place for the Agreement Period as
provided herein.
5.2 Upon expiration of the Agreement Period and Proposed Operator's substantial
compliance with this Agreement, the Temporary Conditions and operational
conditions of the CUP, City agrees this Agreement shall automatically terminate,
with no further actions required by either party and ALL condition shall REVERT
to the original conditions approved by the CUP.
5.3 City will endeavor to communicate with Proposed Operator and/or Proposed
Operator's representative during the Agreement Period related to any concerns,
complaints and/or issues to allow the Proposed Operator to take immediate and
appropriate actions to address the same.
5.4 The City shall retain its rights to take all appropriate enforcement action, including
but not limited to, administrative action(s) as authorized under the Santa Ana
Municipal Code, in the event the City finds, at its sole discretion, that Proposed
Operator either: (1) violated the terms and conditions of this Agreement; and/or (2)
the conditions of approval outlined in CUP No. 2019-07.
SECTION 6. MUTUAL REPRESENTATIONS. Both parties represent and acknowledge
that the Proposed Operator, while not responsible for the previous actions, non -actions and/ or
compliance related issues of the previous operator and business, has entered into this Agreement
in good faith and to show its intention to comply with all applicable conditions and establish a
record of compliant operations to the City.
SECTION 7. GENERAL PROVISIONS.
7.1 None of the terms, provisions, or conditions of this Agreement shall be deemed to
create a partnership between the parties hereto and any of their heirs, successors, or
assigns, nor shall such terms, provisions or conditions cause them to be considered
joint ventures or members of any joint enterprise.
7.2 All of the Agreements, rights, covenants, reservations, and restrictions contained in
this Agreement shall be binding upon and shall inure to the benefit of the parties
herein, their heirs, successors, legal representatives, assigns, and all persons
acquiring any part or portion of the Property, whether by operation of law on in any
manner whatsoever.
7.3 In the event that any of the provisions of this Agreement are held to be
unenforceable or invalid by any court of competent jurisdiction, or by subsequent
preemptive legislation, the validity and enforceability of the remaining provisions,
or portions thereof, shall not be affected thereby.
7.4 This Agreement shall be construed and governed in accordance with the laws of the
State of California, with venue in Orange County.
IN WITNESS WHEREOF, the Proposed Operator and City have caused this Agreement to be executed
as evidenced by the signatures of the authorized officers of each of them on the dates set forth below.
CITY OF SANTA ANA:
Dated: \\ 2
ATTEST:
Dated: \.1
PROPOSED OPERATOR:
Dated: 9j a0Z3
CITY OF SANTA ANA
By: �.-- 1� � � j
Steven Mendoza, Acting City Manager ,
CITY OF SANTA ANA
By:
Je ' er .Hall 'ty C rk
?me-
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[Signatures continued on the following page]
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APPROVED AS TO FORM:
Dated:
Dated: I 3 002
SONIA R. CARVALHO
CITY ATTORNEY
City of Santa Ana
Jos Montoya
Assistant City Attorney
CITY OF SANTA ANA
Print Name: pyA2
Counsel for Proposed Operator
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Altanrnrm t "A"
Conditional Use Permit No. 2019-07
the use and ensure that the use will not negatively affect the
surrounding community.
2. That the proposed use will not, under the circumstances of the
particular case, be detrimental to the health, safety, or general
welfare of persons residing or working in the vicinity.
The proposed sale of alcoholic beverages for on -premises
consumption at this location will not be detrimental to the
health, safety, or general welfare of persons residing or
working in the vicinity because the operational standards
applicable to the alcoholic beverage control license will
address any potential negative or adverse impacts created
by the use. Culichi Town restaurant will be a bona -fide
restaurant and the addition of alcohol will be ancillary to the
main use. All of the operational standards identified in SAMC
Sec. 41-196 will apply to this establishment. The subject site
is not located within immediate proximity to parks,
playgrounds, schools, or religious institutions. Finally, the
sale of alcohol in the restaurant is intended to be incidental
to the primary use as an eating establishment and will occur
within the premises.
3. That the proposed use will not adversely affect the present economic
stability or future economic development of properties surrounding
the area.
The proposed use will not adversely affect the economic
stability of the area, but will instead allow the restaurant to
compete with other nearby restaurants that offer a full
selection of alcoholic beverages for sale to their customers.
Moreover, the offering of alcoholic beverages will allow Culichi
Town restaurant to remain economically viable and compete
with nearby full -service restaurants in the local vicinity and
contribute to the overall success of the City of Santa Ana,
attracting visitors and residents to the area.
4. That the proposed use will comply with the regulations and
conditions specified in Chapter 41 for such use.
The proposed conditional use permit will be in compliance
with all applicable regulations and operational standards
imposed on a restaurant selling alcoholic beverages for on -
premises consumption pursuant to Chapter 41 of the SAMC.
The facility will be maintained as a full -service, bona -fide
eating establishment, having suitable kitchen facilities and
supplying an assortment of foods. Additionally, the restaurant
will utilize less than five (5) percent of the gross floor area for
display and storage of alcoholic beverages, which is the
Resolution No. 2019.11
Page 2 of 6
maximum threshold established by the Santa Ana Municipal
Code, Operational standards will ensure the project remains
in compliance with all applicable codes and regulations
related to alcohol sales to ensure that the use does not
impact neighboring properties or create an attractive
nuisance.
5. That the proposed use will not adversely affect the General Plan of
the city or any specific plan applicable to the area of the proposed
use.
The proposed sale of alcoholic beverages for on -premises
consumption at this location will not adversely affect the
General Plan or any specific plan, The granting of this
conditional use permit supports several policies contained in
the General Plan. Policy 2.2 of the Land Use Element
encourages land uses that accommodate the City's needs
for goods and services. Providing a variety of full -service
restaurants that provide alcoholic beverages as part of their
menu offers additional dining options for Santa Ana
residents and visitors. Furthermore, Policy 2.9 of the Land
Use Element supports developments that create a business
environment that is safe and attractive. Operational standards
for the proposed ABC license will maintain a safe and
attractive environment in the neighborhood. Policy 5,5 of the
Land Use Element encourages development that is
compatible with and supporting of surrounding land uses.
Culichi Town restaurant is located within an integrated
commercial shopping center and its operation is compatible
with the surrounding commercial businesses.
Section 2. In accordance with the California Environmental Quality Act (CEQA)
and the CEQA Guidelines, the recommended action is exempt from CEQA per Section
15061(b) (3). This exemption applies to projects where it can be seen with certainty that
there is no possibility that the activity in question may have a significant effect on the
environment. The project proposes to allow the on -premises sale of alcoholic beverages
at a full -service restaurant and minor interior tenant improvements. There is no
reasonable possibility that the project will have a significant effect on the environment due
to the facility having the necessary infrastructure to operate the proposed use and no new
expansion of the existing building is proposed.
Section 3. The Applicant agrees to indemnify, hold harmless, and defend the
City of Santa Ana, its officials, officers, agents, and employees, from any and all liability,
claims, actions or proceedings that may be brought arising out of its approval of this
project, and any approvals associated with the project, including, without limitation, any
environmental review or approval, except to the extent caused by the sole negligence of
the City of Santa Ana.
Resolution No. 2019-11
Page 3 of 6
LS 3,11.19
RESOLUTION NO. 2019-11
A RESOLUTION OF THE PLANNING COMMISSION OF
THE CITY OF SANTA ANA APPROVING CONDITIONAL
USE PERMIT NO. 2019-07 AS CONDITIONED, TO ALLOW
THE SALE OF ALCOHOLIC BEVERAGES FOR ON -
PREMISES CONSUMPTION AT CULICHI TOWN
RESTAURANT LOCATED AT 2158 SOUTH BRISTOL
STREET
BE IT RESOLVED BY THE PLANNING COMMISSION OF THE CITY OF
SANTA ANA AS FOLLOWS:
Section 1, The Planning Commission of the City of Santa Ana hereby finds,
determines and declares as follows:
A. Edgar Ascencio ("Applicant") representing Culichi Town restaurant, is
requesting approval of Conditional Use Permit No. 2019-07 to allow the sale
of alcoholic beverages for on -premises consumption (Type 47 — General
Alcohol) for the property located at 2158 South Bristol Street.
B. Santa Ana Municipal Code Section 41-196 requires approval of a
conditional use permit for establishments wishing to sell alcohol for on -
premises consumption.
C. On March 11, 2019, the Planning Commission held a duly noticed public
hearing on Conditional Use Permit No. 2019-07,
D. The Planning Commission determines that the following findings, which
must be established in order to grant this Conditional Use Permit pursuant
to Santa Ana Municipal Code ("SAMC") Section 41-638, have been
established for Conditional Use Permit No. 2019-07 to allow the sale of
alcoholic beverages for on -premises consumption:
1, That the proposed use will provide a service or facility which will
contribute to the general well being of the neighborhood or
community.
The proposed sale of alcoholic beverages for on -premises
consumption at this location will provide an ancillary service to
the restaurant's customers by allowing them the ability to
purchase beer, wine and distilled spirits with their meal. This
will thereby benefit the community by providing a restaurant
with an additional and complementary food related amenity.
Operational standards applicable to the alcoholic beverage
control license will mitigate any potential impacts created by
Resolution No. 2019-11
Page 1 of 6
Section 4. The Planning Commission of the City of Santa Ana after conducting
the public hearing hereby approves Conditional Use Permit No. 2019-07 as conditioned
in Exhibit A, attached hereto and incorporated herein, for the alcoholic beverage control
license for the sale of alcohol for on -premises consumption for the project located at
2158 South Bristol Street. This decision is based upon the evidence submitted at the
abovesaid hearing, which includes, but is not limited to: the Request for Planning
Commission Action dated March 11, 2019, and exhibits attached thereto; and the public
testimony, written and oral, all of which are incorporated herein by this reference.
ADOPTED this 111 day of March, 2019.
AYES: Commissioners: ALDERETE,
MCLOUGHLIN,
NOES: Commissioners: NONE (0)
ABSENT: Commissioners:
ABSTENTIONS: Commissioners:
APPROVED AS TO FORM:
Sonia R. Carvalho, City Attorney
Lisa Storck
Assistant City Attorney
CANO (1)
NONE (0)
BENAVIDES, CONTRERAS-LEO,
NGUYEN, RIVERA (6)
QA&Ks
Ma cLoughlin
Chairperson
CERTIFICATE OF ATTESTATION AND ORIGINALITY
I, SARAH BERNAL, Commission Secretary, do hereby attest to and certify the attached
Resolution No. 2019-11 to be the original resolution adopted by the Planning
Commission of the City of Santa Ana on March 11, 2019.
Date: gill 11 °i
Commission Secretary
City of Santa Ana
Resolution No. 2019-11
Page 4 of 6
T1
Conditions of Approval for Conditional Use Permit No. 2019.07
Conditional Use Permit No, 2019-07 for on -premises alcohol sales is approved subject
to compliance, to the reasonable satisfaction of the Planning Manager, with applicable
sections of the Santa Ana Municipal Code, the California Administrative Code, the
California Building Standards Code, and all other applicable regulations. In addition, they
shall meet the following conditions of approval:
The Applicant must comply with each and every condition listed below prior to exercising
the rights conferred by this conditional use permit.
The Applicant must remain in compliance with all conditions listed below throughout the
life of the conditional use permit. Failure to comply with each and every condition may
result in the revocation of the conditional use permit.
1. Any amendment to this conditional use permit must be submitted to the Planning
Division for review. At that time, staff will determine if administrative relief is available or
the conditional use permit must be amended.
To comply with Sec. 41-196,5 of the SAMC and Chapter 11 of the same, the tenant
shall at all times have a current and approved Entertainment Permit on file with the City
of Santa Ana.
3. The sales, service, and consumption of alcoholic beverages shall be permitted in
accordance with the operational standards for on -sale establishments pursuant to
Section 41-196(g) of the SAMC and in accordance with the provisions of a Type-47
alcohol license by the State Alcohol Beverage Control Board (ABC).
4. The sales, service, and consumption of alcoholic beverages shall be limited from
10:30 a.m. to 12:00 a.m. Monday through Sunday.
5. Prior to the issuance of the alcoholic beverage license, a Property Maintenance
Agreement must be recorded against the property. The agreement will be subject to
review and applicability by the Planning and Building Agency, the Community
Development Agency, the Public Works Agency, and the City Attorney to ensure that
the property and all improvements located thereupon are properly maintained,
Applicant (and the owner of the property upon which the authorized use and/or
authorized improvements are located if different from the Applicant) shall execute a
maintenance agreement with the City of Santa Ana which shall be recorded against
the property and which shall be in a form reasonably satisfactory to the City
Attorney. The maintenance agreement shall contain covenants, conditions and
restrictions relating to the following:
Resolution No. 2019-11
Page 5 of 6
(a) Compliance with operational conditions applicable during any period(s) of
construction or major repair (e.g., proper screening and securing of the
construction site; implementation of proper erosion control, dust control and
noise mitigation measure; adherence to approved project phasing etc.);
(b) Compliance with ongoing operational conditions, requirements and
restrictions, as applicable (including but not limited to hours of operation, security
requirements, the proper storage and disposal of trash and debris, enforcement
of the parking management plan, and/or restrictions on certain uses,
(c) Ongoing compliance with approved design and construction parameters,
signage parameters and restrictions as well as landscape designs, as applicable;
(d) Ongoing maintenance, repair and upkeep of the property and all
improvements located thereupon (including but not limited to controls on the
proliferation of trash and debris about the property; the proper and timely removal
of graffiti; the timely maintenance, repair and upkeep of damaged, vandalized
and/or weathered buildings, structures and/or improvements; the timely
maintenance, repair and upkeep of exterior paint, parking striping, lighting and
irrigation fixtures, walls and fencing, publicly accessible bathrooms and bathroom
fixtures, landscaping and related landscape improvements and the like, as
applicable);
(e) If Applicant and the owner of the property are different (e.g., if the Applicant is
a tenant or licensee of the property or any portion thereof), both the Applicant
and the owner of the property shall be signatories to the maintenance agreement
and both shall be jointly and severally liable for compliance with its terms.
(f) The maintenance agreement shall further provide that any party responsible
for complying with its terms shall not assign its ownership interest in the property
or any interest in any lease, sublease, license or sublicense, unless the
prospective assignee agrees in writing to assume all of the duties, obligations
and responsibilities set forth under the maintenance agreement.
(g) The maintenance agreement shall contain provisions relating to the
enforcement of its conditions by the City and shall also contain provisions
authorizing the City to recover costs and expenses which the City may incur
arising out of any enforcement and/or remediation efforts which the City may
undertake in order to cure any deficiency in maintenance, repair or upkeep or to
enforce any restrictions or conditions upon the use of the property. The
maintenance agreement shall further provide that any unreimbursed costs and/or
expenses incurred by the City to cure a deficiency in maintenance or to enforce
use restrictions shall become a lien upon the property in an amount equivalent to
the actual costs and/or expense incurred by the City.
(h) The execution and recordation of the maintenance agreement shall be a
condition precedent to the issuance of final approval for any construction permit
related to this entitlement.
Resolution No. 2019.11
Page 6 of 6