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October 2, 2012


The Mayor and Council of the Borough of Point Pleasant Beach met at 6:10 PM with Mayor Barrella and Council Members Tooker, Gordon, Mayer, Corbally, Lurie and Reid present. The Municipal Clerk read the notice indicating compliance with the Open Public Meetings Act.

Motion by Councilman Corbally, to enter closed session to discuss litigation, contract, personnel, and potential litigation matters was seconded by Councilman Gordon and carried by roll call vote.
VOTE: Council Members Tooker, Gordon, Mayer, Corbally, Lurie, Reid….YEA

Closed Session began at 6:12 PM and ended at 7:00 PM.

Mayor Barrella called the regular meeting to order at 7:13 PM. Present were Council Members Tooker, Gordon, Mayer, Corbally, Lurie and Reid. The Deputy Municipal Clerk again read the notice indicating compliance with the Open Public Meetings Act.

Ordinance 2012-32 (Storm Rehabilitation Boardwalk Bond) was considered on second reading. The public hearing was opened, held and closed with no member of the public wishing to be heard.
Motion by Councilman Gordon, to close the public hearing and adopt Ordinance
2012-32, was seconded by Councilman Reid and carried by roll call vote.
VOTE: Council Members Tooker, Gordon, Mayer, Corbally, Lurie, Reid….YEA

Mayor Barrella called a 2-minute recess at 7:15PM.

PUBLIC PARTICIPATION PERIOD (Non-Agenda Items) OPENED AT 7:22 PM and ENDED AT 7:22 PM, as no member of the public wished to be heard.

Mayor Barrella invited public comment.
Robert Shea, attorney for The Wharfside: reached a Memorandum of Understanding with Diana Anderson, Mr. Cleary’s attorney, relative to Mr. Cleary’s concerns with the extension of The Wharfside’s liquor license – memorialization will be verbatim as to what is on the record.

“MEMORANDUM OF UNDERSTANDING (MOU), made this second day of October 2012 by and between Chef’s International …. and Mr. William Cleary, who currently resides at 49 Inlet Drive, Point Pleasant Beach, NJ.
WHEREAS, Chef’s International owns and operates the facility known as The Wharfside Patio Bar, and
WHEREAS, Cleary owns property located at 49 Inlet Drive in Point Pleasant Beach, NJ;
WHEREAS, the parties hereto participated in a hearing pertaining to the renewal of a liquor license held by Chef’s International before the Borough Council of the Borough of Point Pleasant Beach between June and October of 2012;
WHEREAS, the parties have hereto engaged in discussions concerning the operation of the aforesaid facility by Chef’s International and the effect thereof upon Mr. Cleary at 49 Inlet Drive; and
WHEREAS, the parties have hereto reached certain understandings and agreements which they desire to memorialize in this MOU; it is therefore agreed by and between the parties as follows:
I. Applicability: This agreement is applicable only to the Wharfside Patio Bar and Grill and
Mr. Cleary at 49 Inlet Drive.
II. Noise Standards: Chef’s International agrees to comply with the regulations adopted by
NJ Department of Environmental Protection at NJAC 7: 29-1.2, etc.
III. Sound System: Chef’s agrees to maintain a sound system which shall a minimum
incorporate the following elements:
1) A security system, which permits only authorized access to the volumr controls of the sound system.
2) We shall also maintain the directional speakers for the “canned music”
IV. Testing of Sound System:
1) The sound system at Wharfside Patio Bar shall be tested in accordance with the procedures in NJAC 7:29-1.2 etc.
2) All testing shall be performed on a basis of decibel meter reading, taken by qualified personnel. Chef’s agrees to provide reasonable notice to both Cleary and the Borough of Point Pleasant (Beach) at least two times during the operation of the Patio Bar between June and September 20th of respective year for the testing, and to permit a representative of the Borough and Mr. Cleary to be present and to observe the final testing.
V. Agreement Between Parties:
1) The controls of the aforesaid sound system shall be accessible only by authorized employees of Chef’s International.
2) If music after 10PM is plainly audible on the Cleary property, Mr. Cleary shall immediately contact the manager on duty at (732) 892-9100 to report the same, and shall also provide an e-mail notice of the same to Mr. Cooper at the following e-mail address: coop@chefsinternational.com.
3) Parties shall make reasonable efforts to control the sound level at or below the standards of parties, but Wharfside shall make reasonable efforts to control the sound levels at or below the standards, as set forth in NJAC7:29-1.2 etc.
VI. Reservation of Rights: Nothing in this Memorandum of Understanding shall be interpreted as a waiver of any rights of both Mr. Cleary and Chef’s International, to take any legal or administrative action in the event of a breach hereof, nor shall this Memorandum be interpreted to alter, waive, modify or compromise any of the legal rights of the aforesaid including specifically by way of example but not by limitation the right to appear as an objector, or otherwise, on any application brought by Chef’s International before the Planning Board or Board of Adjustment of the Borough of Point Pleasant Beach and, similarly, Chef’s International waives no rights as pertains to the property, future operation of its business or any plans for expansion of its operation, as long as the appropriate notice is provided by law and by statute, and in the event of such application, the applicant shall provide notice to Mr. Cleary, who is beyond the 200-foot limit, as long as he resides there.
VII. Effective Date: The provisions of this MOU, unless otherwise noted, shall take effect immediately and shall remain in effect through September 30th of 2013. The parties hereto agree to meet after conclusion of Chef’s September 2013 operating season to discuss the effectiveness of this agreement and the renewal and/or modification or the extension of the same thereof.”

Mr. Shea: intends to have this signed and executed by representatives of Chef’s International – these representations, verbatim of what he placed on the record, will be incorporated by way of an agreement to effectively end any issue that Mr. Cleary had relative to the liquor license renewal for 2012/2013.
Mayor Barrella: thanked attorneys for coming in early, sitting with Attorney Gertner and himself, and getting this done – also thanked Mr. Cleary and Mr. Cooper.
Attorney Gertner: there is a Council meeting next Tuesday – would like this circulated, signed and back to him and the Governing Body, so a resolution relating to the license renewal can be attached to it for next meeting – since this MOU goes through September 2013, resolution will include the fact that this MOU will be part of any renewal as of July 1, 2013.
Attorney Anderson: doesn’t see a problem getting it signed before next Tuesday.
Attorney Shea: this is the agreement, arrived at by the parties, placed on the record, and the execution of the documents memorializing the agreement that has been reached between the parties as of this night (Attorney Gertner: yes).
Mayor Barrella: invited public comment on the Wharfside license renewal – as there was none, action will be carried without notice to October 9th – will vote on resolution to approve the license – clarified that Mr. Cleary is withdrawing his objection (Attorney Anderson: yes; Attorney Shea: asked if a vote could be taken tonight, with memorialization at next Council meeting, since all parties are in the room and issues have been placed on the record – language will not change) could take a vote, with the caveat that it is subject to receipt of the written agreement and its memorialization in the final resolution (Attorney Gertner: resolution would include language that they have liquor license 1525-33-009-005 located at 101/105 Channel Drive, will note that objection had been raised and that, as a condition of settling the objection, there will be a MOU attached to the agreement, and the resolution will include previous conditions that will carry forward, including expansion of the liquor license (Mr. Shea: would agree to all conditions as herefore set forth on previous liquor license resolution).
Motion by Councilman Lurie, to renew Wharfside ABC License with all current conditions and those incorporated in Memorandum of Understanding as listed above, was seconded by Councilman Reid and carried by roll call vote.
VOTE: Council Members Tooker, Gordon, Mayer, Corbally, Lurie, Reid….YEA

Motion by Councilman Reid to adjourn was seconded by Councilman Corbally and carried by consent of Council.

Meeting was adjourned at 7:35 PM.

TRANSCRIBED BY: Maryann Ellsworth & Eileen Farrell

ATTEST: Maryann Ellsworth, Municipal Clerk

Published November21, 2012 | Council Minutes | 1473

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