2017-009 - Approve request to modify an existing CUP for the Toll House at 140 S Santa Cruz Ave to allow entertainment before 10pmRESOLUTION 2017 -009
RESOLUTION OF THE TOWN COUNCIL
OF THE TOWN OF LOS GATOS
APPROVING A REQUEST TO MODIFY AN EXISTING CONDITIONAL USE PERMIT
TO ALLOW ENTERTAINMENT BEFORE 10:00 P.M.
ON PROPERTY ZONED C -2:PD
APN: 510 -45 -064 AND 065
CONDITIONAL USE PERMIT APPLICATION: U -16 -055
PROPERTY LOCATION: 140 S. SANTA CRUZ AVENUE
PROPERTY OWNER: MICHAEL MOHR - COO METWEST PROPERTIES, LLC
APPLICANT: LG HOTEL LLC D.B.A. TOLL HOUSE
WHEREAS, the applicant requests approval for a modification to an existing Conditional
Use Permit (CUP) to allow entertainment before 10:00 p.m. on property zoned C -2:PD; and
WHEREAS, on September 14, 2016, November 9, 2016, and January 11, 2017, the
Planning Commission considered CUP application U -16 -055 to modify an existing CUP on
property zoned C -2:PD. The Planning Commission recommended approval of the request with
modified Conditions of Approval, finding that the proposed use of the property is essential or
desirable to the public convenience in that it will allow entertainment before 10:00 p.m. for
patrons; the proposed use will not impair the integrity and character of the zone in that the
proposed use is a commercial use and is located in a commercial zone; the proposed use will
not be detrimental to public health, safety, or general welfare in that the proposed
modification will comply with the Town's Entertainment Policy; and the proposed use of the
property is in harmony with the various elements or objectives of the General Plan and the
purposes of the Town Code and as discussed within the September 14, 2016 Planning
Commission Staff Report; and
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Resolution 2017 -009 March 7. 2017
WHEREAS, this matter was regularly noticed in conformance with State and Town law
and came before the Town Council for public hearing on February 21, 2017; and
WHEREAS, the Town Council received testimony and documentary evidence from the
applicant and all interested persons who wished to testify or submit documents. The Town
Council considered all testimony and materials submitted, including the record of the Planning
Commission proceedings and the packet of material contained in the Council Agenda Report for
its meeting on February 21, 2017, along with any and all subsequent reports and materials
prepared concerning this application; and
WHEREAS, the Town Council approved the application subject to modified conditions
and continued the item to March 7, 2017 in order to review the Draft Resolution, the
Conditions of Approval attached hereto as Exhibit A, and the Operating Agreement attached
hereto as Exhibit B.
WHEREAS, Council finds as follows:
A. The project is categorically exempt from environmental review pursuant to Section
15301 of the State Environmental Guidelines as adopted by the Town.
B. Pursuant to Town Code section 29.20.190:
1. The proposed use is desirable to the public convenience and welfare in that it
will allow entertainment before 10:00 p.m. for patrons; and
2. The proposed use will not impair the integrity of the zone, in that the proposed
modification will comply with the Town's Entertainment Policy and Noise
Ordinance; and
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Resolution 2017 -009 March 7, 2017
2058.
3. The proposed use as conditioned by the provisions of the CUP and Operating
Agreement attached hereto as Exhibits A and B will not be detrimental to public
health, safety, or general welfare, as the conditions will mitigate potential
impacts; and
4. The proposed use is in harmony with the General Plan and Town Code.
C. The CUP, as modified, is in conformance with Planned Development Ordinance
D. That the proposed use is consistent with the Redevelopment Plan for the Central Los
Gatos Redevelopment Project Area (Section IV.B) in that the subject property is designated
commercial and the proposed use falls under general commercial uses.
NOW, THEREFORE, BE IT RESOLVED:
1. The requested modification to the existing CUP to allow entertainment before 10:00
p.m. is approved.
2. The Conditions of Approval attached hereto as Exhibit A are hereby adopted.
3. The Town Manager is authorized to sign the Operating Agreement attached hereto as
Exhibit B which must be executed prior to any entertainment occurring on the property as
allowed under the modified CUP. The Town Manager is further authorized to approve any
modifications to the Operating Agreement consistent with Town Codes and policies.
4. The decision constitutes a final administrative decision pursuant to California Code
of Civil Procedure Section 1094.6 as adopted by Section 1.10.085 of the Town Code of the Town
of Los Gatos. Any application for judicial relief from this decision must be sought within the
time limits and pursuant to the procedures established by California Code of Civil Procedure
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Resolution 2017 -009 March 7, 2017
section 1094.6, or such shorter time as required by State and Federal Law.
PASSED AND ADOPTED at a regular meeting of the Town Council of the Town of Los
Gatos, California, held on the 7th day of March, 2017, by the following vote:
COUNCIL MEMBERS
AYES: Marcia Jensen, Rob Rennie, Barbara Spector, Mayor Marico Sayoc
NAYS: Steve Leonardis
ABSENT: None.
ABSTAIN: None.
SIGNED:
,1 Y1A-w
MAYOR OF E TOWN F LOS GATOS
LOS GATOS, RNIA
DATE: 3- 10— 1-7
ATTEST:
CLERK ADMINISTRATOR OF THE TOWN OF LOS GATOS
LOS GATOS, CALIFORNIA
DATE: `1
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Resolution 2017 -009 March 7, 2017
TOWN COUNCIL -February 21, 2017
MODIFIED CONDITIONS OF APPROVAL:
140 S. Santa Cruz Avenue
Conditional Use Permit Application U -16 -005
Requesting a modification to an existing Conditional Use Permit to allow
entertainment before 10:00 p.m. on property zoned C -2:PD. APNs 510 -45 -064 and -
065.
PROPERTY OWNER: Michael Mohr - Coo MetWest Properties, LLC
APPLICANT: LG Hotel LLC D.B.A. Toll House
TO THE SATISFACTION OF THE COMMUNITY DEVELOPMENT DIRECTOR:
Planning Division
1. ALCOHOLIC BEVERAGES: So long as this establishment serves alcoholic beverages it shall be
subject to the following:
a. Uniformed privately provided security guards may be required in or around the
premises by the Chief of Police if alcohol related problems recur that are not resolved by
the licensed owner.
b. At the discretion of the Chief of Police, periodic meetings will be conducted with
representatives from the Police Department for on -going employee training on alcoholic
beverage service to the general public.
c. This establishment shall use an employee training manual that addresses alcoholic
beverage service consistent with the standards of the California Restaurant Association.
d. The licensed operator shall have and shall actively promote a designated driver program
such as complimentary non - alcoholic beverages for designated drivers.
e. Taxicab telephone numbers shall be posted in a visible location.
2. TOTAL SEATING: Total seating shall not exceed 130.
3. OUTDOOR SEATING: Outdoor seating shall not exceed 36.
4. ALCOHOLIC BEVERAGES: Alcoholic beverages may be served.
5. OUTDOOR SEATING USE: The outdoor seating shall not be used for banquet, reception or
conference purposes.
6. OUTDOOR MEAL SERVICE HOURS: Meal service outdoors shall be limited from 7:00 a.m. to
10:00 P.M.
7. ENTERTAINMENT: Entertainment before 10:00 p.m. in conformance with the Town Policy
Regulating Late Night Entertainment is allowed by the operator, pursuant to the approved
Operating Agreement.
EXHIBIT A
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Resolution 2017 -009 March 7, 2017
TOLL HOUSE OPERATING AGREEMENT TO ALLOW
ENTERTAINMENT AT 140 S. SANTA CRUZ AVENUE
This OPERATING AGREEMENT ( "Agreement ") is dated for identification this 7 1 day of March
2017, the terms of which are agreed to by Michael Mohr, Coo and Metwest Properties
LLC and LG Hotel LLC dba Toll House (hereinafter collectively referred to as "Toll
House ") and approved by The Town of Los Gatos (hereinafter "Town ") and made in
conjunction with Conditional Use Permit U -16 -005, issued by the Town to Toll House.
RECITALS
WHEREAS, Toll House is a hotel and restaurant establishment located at 140 S. Santa
Cruz Avenue in Los Gatos (APN 510 -45 -064 AND 065), property zoned C -2:PD; and
WHEREAS, the existing Conditional Use Permit (CUP) allows the restaurant to offer
outdoor dining until 10:00 p.m. on the patio, overlooking the hotel's central outdoor
courtyard, but prohibits any music, entertainment or amplified sound in the courtyard; and
WHEREAS, on March 7, 2017, the Los Gatos Town Council approved Conditional Use
Permit U -16 -005 for a modification to the existing Toll House CUP to allow for
entertainment in the courtyard before 10:00 p.m., subject to certain conditions of approval;
and
WHEREAS, Conditional Use Permit U -16 -005, Condition No. 7 requires Toll House to
enter into an Operating Agreement, which would further define and impose operational
limitations, responses, and remedies for the Town to employ as necessary to insure that the
entertainment at the Toll House does not negatively impact the health, safety, and welfare of
the Town; and
WHEREAS, Toll House recognizes that Toll House has no vested right for the
allowance of entertainment at the Toll House and that this Operating Agreement, coupled
with the CUP U -16 -005, memorializes the terms and conditions under which Toll House is
allowed to have entertainment in the courtyard before 10:00 p.m.
NOW THEREFORE, in consideration of the mutual covenants and conditions set forth
herein, the Parties agree as follows:
1. The foregoing Recitals are incorporated into this Operating Agreement.
2. Toll House is allowed to have entertainment before 10:00 p.m. on Friday,
Saturday, and Sunday in conformance with the Town Policy Regulating Late
Night Entertainment and pursuant to the terms and conditions of this Operating
Agreement. Toll House entertainment allowed by this Operating Agreement
shall not be the primary use at any time and is only allowed as an ancillary use
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Toll House Operating Agreement to Allow Entertainment at 140 S. Santa Cruz Avenue EXHIBIT B
and at no time shall the Toll House offer any stand -alone entertainment. For the
purposes of this Operating Agreement, entertainment includes, live music both
instrumental (no percussion) or vocal, amplified music or sound that is associated with
weddings, banquets, corporate or family gatherings and restaurant associated activities.
3. Toll House shall have on site during any entertainment event a Manager who
will serve as a point of contact between Toll House and the surrounding
neighborhood and members of the public. The Manager's contact information
will be accessible to members of the public, by telephone and on the Toll House
website. Toll House shall keep a log with the date and time of any noise
complaints by the surrounding neighborhood and any actions taken pursuant to
a complaint. This log will be made available to Town Staff upon request.
4. Toll House shall install two permanent noise monitoring devices of an agreed -
upon type at the locations set forth in the attached Noise Assessment, dated
October 4, 2016, completed by Charles M. Salter Associates Inc. for the purpose
of monitoring noise levels during entertainment events at the Toll House. This
equipment will be set to monitor decibel levels of sound during Toll House
entertainment events and shall be maintained and calibrated to industry
standards. This equipment shall be capable of recording, storing, and retrieving
data by date and time of the decibel levels of sound. If at any time during an
entertainment event, decibel levels exceed the levels set forth in Paragraph 5, a
noise file will be electronically sent to the on duty Manager's electronic device to
allow for immediate adjustment of amplification equipment to reduce sound
levels to no more than the allowed maximum provided in Paragraph 5. In
addition, the on duty Manager shall immediately forward monitoring results
documenting levels above the limits set forth in Paragraph 5 to the Town
Manager of Los Gatos by email. Toll House shall also provide a copy of all the
monitoring results to the Town within 4 business days of any entertainment
event.
5. Toll House agrees that the decibel levels recorded by the two permanent noise
monitoring devices shall not exceed the amounts set forth in the attached Noise
Assessment, dated October 4, 2016, completed by Charles M. Salter Associates
Inc. as follows:
A. Entertainment events occurring from 1:00 p.m. to 10:00 p.m.
on weekdays shall operate at a maximum level of 74 dBA at the
C1 location and 82 dBA at the C2 location in order to meet the
required Town Noise Zone Limits.
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Toll House Operating Agreement to Allow Entertainment at 140 S. Santa Cruz Avenue
B. Entertainment events occurring from 1:00 p.m. to 10:00 p.m.
on weekends and holidays shall operate at a maximum level of
69 dBA at the C1 location and 77 dBA at the C2 location in order
to meet the required Town Noise Zone Limits.
6. In the event Toll House exceeds the maximum level of dBA set forth in Paragraph
5 during an entertainment event that results in a noise complaint within 15
minutes of the exceedance, the Toll House shall receive a written warning. The
second separate and subsequent entertainment event that results in a noise
complaint within 15 minutes of the exceedance shall result in a fine of $500.00
for that entertainment event. The third and separate and subsequent
entertainment events that result in a noise complaint within 15 minutes of the
exceedance shall result in a fine of $1,000.00 for that entertainment event and
Toll House agrees to cease any further entertainment events immediately until
such time as a public hearing is scheduled to determine whether the Town
Council should revoke, suspend or modify CUP Condition No. 7 and this
Operating Agreement. The costs associated with this public hearing shall be
borne by the Toll House.
Toll House agrees that in addition to decibel levels set forth in Paragraph 5
above, the decibel levels at any point outside the property plane shall comply
with the requirements set forth in the Town Noise Ordinance and Town Noise
Maps. At no time shall any entertainment originating from any part of the
business create a public nuisance as defined under Town Code and State Law.
S. Toll House shall include the terms of this Operating Agreement and the
requirements of the Town's Noise Ordinance into any contract for
entertainment. In addition, any contract for entertainment shall require that all
entertainment instruments and equipment shall only be setup on the north end
of the courtyard with the sound system facing south (i.e., inwards towards the
hotel).
9. Toll House agrees that it must cease operation of the noise source
immediately if there is an exceedance in the maximum level of dBA set forth
in Paragraph 5 during an entertainment event until such time that additional
measures are implemented to eliminate the noise exceedance. Such
additional measures include but are not limited to, speaker reduction,
speaker placement, noise dampening, or any other solution to remedy the
exceedance. In addition, the Town Manager may amend the conditions of
this Operating Agreement if changes are needed to address any issues which
the current conditions do not fully address.
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Toll House Operating Agreement to Allow Entertainment at 140 S. Santa Cruz Avenue
10. In addition to Paragraph 9, this Operating Agreement and Condition of
Approval No. 7 may be revoked, suspended or modified by the Town Council,
at any time, whenever, after a noticed hearing, the Town Council finds that
three violations of this Operating Agreement have occurred that cannot be
remedied through implementation of additional measures and conditions to
eliminate additional violations.
11. In addition to paragraph 9 and 10, this Operating Agreement and CUP
Condition No. 7 shall be reviewed by the Town Council at a noticed public
hearing on November 7, 2017, to ensure on -going compliance with this
Operating Agreement and to ensure that the Toll House is in compliance with
Town Code and State Law. At this hearing, the Town Council may revoke,
suspend or modify CUP Condition No. 7 of this Operating Agreement in order
to address any issues related to entertainment at the Toll House. The costs
associated with this public hearing shall be borne by the Toll House.
12. Toll House understands and agrees that this Operating Agreement and CUP
Condition No. 7 does not now, nor will it in the future, establish any vested
rights for the allowance of entertainment and does not run with the land.
Toll House agrees that this Agreement shall be disclosed to any prospective
purchaser, assignee, or subtenant of Toll House and any purchaser, assignee,
or subtenant of Toll House must re- execute this Agreement before the
allowance of any entertainment.
13. Toll House agrees to defend, indemnify, and hold harmless the Town or any of its
boards, commissions, agents, officers, and employees from any claim, action or
proceeding against the Town, its boards, commissions, agents, officers, or
employees to attack, set aside, void, or annul, the approval of the project. The
Town shall promptly notify the applicant of any such claim, action or proceeding.
The Town shall have the option of coordinating the defense. Nothing contained
in this condition shall prohibit the Town from participating in a defense of any
claim, action, or proceeding if the Town bears its own attorney's fees and costs,
and the Town defends the action in good faith.
14. To the extent of any conflict between the Town Policy Regulating Late Night
Entertainment and this Operating Agreement, real or alleged, this Operating
Agreement shall control.
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Toll House Operating Agreement to Allow Entertainment at 140 S. Santa Cruz Avenue
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first
herein above set forth.
TOWN OF LOS GATOS
Laurel Prevetti
Town Manager
O AND METWEST PROPERTIES LLC
By: Jason C. Bogan, CHA
Hotel Manager, Authorized Agent of
Coo and Midwest Properties
APPROVED AS TO FORM:
obert Schultz
Town Attorney
ATTEST:
Shelley Neis S
Clerk Administrator
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HOTEL LLC DBA TOLL HOUSE
By: Jason C. Bogan CHA
Hotel Manager, Authorized Agent of
LG Hotel LLC dba Toll House
Toll House Operating Agreement to Allow Entertainment at 140 S. Santa Cruz Avenue