David's Anthem Journal

Breaking News: S&D Cafe Litigation is Settled

In a matter of pure coincidence as Sun City Anthem is about to welcome the reopening of the restaurant in Anthem Center, the parties involved in the litigation filed by the previous Trumpets operator –S&D Café V, LLC- against the Sun City Anthem Community Association have reached a settlement.

The SCA Board of Directors issued the following statement today (Sept. 2):

The Board of Directors is pleased to announce that the lawsuit between S & D Café, Sun City Anthem and Del Webb was settled on Monday, August 31, 2009. The parties, through their respective legal counsel, put the terms of the settlement on the record before the Court on September 1, 2009.

The terms are as follows:

--Plaintiff S & D Café V, LLC releases and discharges Sun City Anthem Community Association Inc. from all claims arising out of its lawsuit, in exchange for Sun City Anthem's release of S & D from all claims arising under Sun City Anthem's counterclaim.  Del Webb is released from the third-party claim.  There will be mutual releases executed among all parties.

--S & D Café is to receive a payment of $250,000. Sun City Anthem will not contribute to this payment. The payment is to be made by Del Webb and the insurance carriers for Sun City Anthem.

In reaching settlement, the Board took into consideration the following factors:

--It was the opinion of an impartial professional mediator in the case that the court would be likely to find merit in some of the plaintiff’s claims, thus creating a potential substantial risk to Sun City Anthem.

--The settlement removes any risk to Sun City Anthem and its residents of an adverse judgment and ends this litigation now before further litigation costs are incurred.

--The settlement removes any risk that Sun City Anthem's insurance policies would not have covered all or a portion of the judgment because of the stated exceptions to coverage under the policies. If there had been coverage issues, there may have been more litigation over coverage. Without coverage, there was a risk that any judgment would have had to be paid out of resident assessments. While this was only a possibility, there was still a risk.

--The settlement removes any risk to Sun City that in the event plaintiff obtained a judgment against the Association based on acts of Del Webb, Del Webb would appeal, leaving Sun City Anthem to pay any judgment while an appeal dragged out.

--Sun City Anthem's counterclaim against S & D Café is most likely worthless, as it would be very difficult if not impossible to collect. S & D is a shell company with no known assets. Because the original Lease entered into in 2002 contained no personal guarantees in the event of a default, Sun City Anthem would have to expend more money in legal fees to initiate further action to seek collection of a judgment against S & D Café by "piercing the corporate veil"  to go after S & D's principals.  This would involve further litigation, additional significant attorney fees without the benefit of our insurance company participation, and very dubious prospects for success.

--Sun City Anthem will not have to pay any part of the settlement amount. That amount was negotiated between the insurance carriers and Del Webb, who all sought to minimize their own risk.

It is important to note that the original lawsuit was filed by S&D Café, not by Sun City Anthem. The amount claimed by S&D Café greatly exceeded the amount of our counterclaim. Regardless of whether the matters in contention were attributed to Del Webb or to the Association, in view of the points stated above the settlement is in the best interest of Sun City Anthem and its homeowners.

Tirzo’s Bistro Plans September 8th Soft Opening

Our wait for the opening of Tirzo’s Bistro at Trumpets will be one week shorter than originally announced.

Tirzo is planning to have a soft opening on Tuesday, September 8th.

A “soft opening” means that there will be a minimum of fanfare, advertising and publicity; while we get to sample the menu, the restaurant staff will be able to adjust to restaurant operations and iron out any rough spots in advance of the official grand opening, which will be on September 15th.

Meet Diane Ellis

Over the past few weeks, Tirzo Hernandez and his top managers have been interviewing many dozens of men and women who applied to work at Tirzo’s Bistro at Trumpets, and invitations have been issued to those selected for employment. Tirzo is moving forward with a conviction that a superb staff has been assembled, balancing restaurant backgrounds with personnel who have outgoing personalities and a commitment to provide excellent experiences for the customer.

This past Friday, we had an opportunity to meet a soon-to-be Tirzo’s Bistro employee who, if she is typical of the quality of men and women working at Tirzo’s Bistro, will help make us feel very good about patronizing the restaurant.

We journeyed over to De Stefano’s on East Tropicana, an Italian restaurant which is keeping alive the tradition of the old-fashioned Las Vegas supper club with a cozy atmosphere and live entertainment.

Friday’s entertainment was billed as the “Red Hot Redheads,” three dynamic female vocalists backed up by the Joe Darro Trio. To listen to these performers was to be instantly transported back to the era of pop and jazz standards, a time when the lyrics and how they were treated really mattered.

One of the outstanding vocalists we saw and heard was Diane Ellis.

 

My understanding is that Diane will be working part of the time as a hostess at Tirzo’s Bistro, and will also do some singing when the entertainment program gets going.

Diane, a Sun City Anthem resident, has a sparkling personality and impeccable knowledge of what it takes to please the customer. You are going to enjoy getting to know her.

Ellis comes from my neck of the woods in Massachusetts, but she has lived in the Las Vegas area for many years. A graduate of the Leland Powers School of Radio, Television and Theatre in Boston, she is someone whose voice you have undoubtedly heard on local radio and TV, doing voice-overs for many commercials. She has her own recording studio, and she also coaches voice-over students and helps them to create their own voice-over demos.

If you’d like to hear some of Diane’s voice-over demos, which showcase the versatility of her voice and personality, just click here.

Reporter’s Note: My understanding is that one of Diane’s SCA neighbors, Norman McCullough, recommended her to Tirzo. Kudos to Mr. McCullough.

Tirzo’s Bistro: Looking Good

As Tirzo’s Bistro at Trumpets prepares for its September 15 grand opening, it looks like the front of the house is in a state of readiness.

Months ago, the Association had performed a scheduled upgrading of the facility, including new carpeting, reupholstered banquettes, new chairs, etc. The photo above shows how Tirzo plans to present the restaurant to us, with gold tablecloths and royal blue napkins.

City regulations require that the bar area be defined separately from the restaurant area, so a railing has been constructed to accomplish this. The top of the railing is a polished wood finish that matches the overall restaurant decor and, in fact, the way railings and wood are employed in Anthem Center itself.

Below is another view of the railing.

The Tirzo’s Bistro Logo

This appears to the the logo for Tirzo’s Bistro. My personal opinion: It is an elegant design that will convey a tone of class and sophistication for our new restaurant.

The Wait is Almost Over!

You will find the following advertisement in the September issue of your Spirit magazine:

Thinking About Trumpets ….

The Sunday newspaper carried another one of those articles –there have been so many lately- about how more restaurants are shutting their doors for good, victimized by the terrible Las Vegas economy. Just within our own SCA vicinity, the number of dining establishments that have folded their tents to cut their losses is significant.

Yet here we are, after nearly two years without a restaurant in Anthem Center, about to welcome a new proprietor who is taking a chance on us and risking his own economic livelihood to realize his personal dream. The other side of the coin is that so many of us have met him in person, tasted the good food at the establishment he currently manages, and have immediately warmed to his personality and his stated eagerness to provide us with a pleasant dining experience.

There couldn’t be a worse time to open a new restaurant, but he’s doing it and our community seems genuinely eager –with a few exceptions- for him to open his doors.

Despite some carping about the lease, which properly reflects a bargain negotiated by two supposedly equal parties, it is clear to this reporter that the comprehensive lease reflects a profound learning experience gained from the original Trumpets lease. We are not “giving away the store,” as a few have suggested; rather, this appears to be a solid lease that benefits from the experiences we suffered under the original lease.

Last year we had a qualified designated tenant walk away from us, and one of the reasons, among several, was apparently a hard-line, “take it or leave it” approach by the negotiators at the time. Now we have a lease that reflects some of the requirements the tenant deems important and some that SCA deems important. To those who have expressed the fear that the lease opens the door to gambling in the form of 5 video poker machines, my respectful advice is that you shouldn’t hold your breath waiting for that to happen.

In this lease, the tenant pays us $7,000 per month rent. The tenant pays his own utilities. The tenant, who already owns and operates an established catering company, pays us a generous percentage of his gross revenues.

We’re about to have a restaurant again. White tablecloths, uniformed servers, and fair prices. Live entertainment will return on weekends. The Sunday brunch will be revived. There  will be much improved oversight and monitoring of the tenant’s finances. We will act expeditiously if he doesn’t pay his rent.

“Out there,” beyond the confines of our community, it is a scary time to be in the restaurant business. We stand a good chance, with the support of our community and SCA’s neighbors, to enjoy a successful venture while others are literally getting out of the business. Let’s all pull together to assure that success.

The Trumpets Menu

The primary mission of this blog is to keep readers informed on a timely basis with news about our community. In fact, the sense of belonging to a community of common interests depends to a large degree on having access to such information.

In that vein, I am pleased to offer the first look at the menu Tirzo Hernandez plans to have in place when Tirzo’s Bistro at Trumpets opens for business in a few short weeks.

As you look at the menu, which is more extensive than the offerings at Tirzo’s current place of business, please keep the following points in mind:

The prices listed on the menu are for the general public. SCA residents will receive a permanent 10 percent discount from these prices.

Tirzo says this menu may eventually be compressed a bit after his dining guests “vote” on their preferences in the form of the choices they make from the menu. But his goal is to open with a broad menu selection so that diners can participate in this process. In addition, he may add items to the menu, even if only on an experimental basis, based on customer requests. Also, note that desserts are not yet shown on the menu.

If some of the menu listings intrigue you and you have not patronized Tirzo’s current operation at Brando’s Bistro, located at Sunset and Green Valley Parkway, you may want to visit Brando’s and try them. Though not all of the Trumpets menu items are served at Brando’s, many are.

A signature item at Brando’s is the basket of warm bread accompanied by a delicious tapenade, placed on the table to start the dinner meals. I expect we will see this also at Trumpets.

You can expect to see frequent “off-menu” offerings, such as daily specials and themed dinners. The immediate goal, however, is to hit the ground running with this menu in place on the day Trumpets reopens.

The formerly popular Sunday brunch will return, probably within several weeks after Trumpets reopens, but Tirzo will first focus on his daily operations.

Comments and requests from customers will help guide many of Tirzo’s restaurant decisions, and it is also expected that the forthcoming Trumpets Resident Advisory Group will play an important role in this process.

Here is the menu for Tirzo’s Bistro at Trumpets. The menu pages should be readable for most, but of course the blog configuration limits how large I can make them. If any of you find it difficult to read the menu, I can send a copy to you as a pdf document if you e-mail a private request to me.

 

SCA Attorney: Bar to be Set High for Gambling in Trumpets

It is probably safe to say that the highlight of the July 23 Board of Directors meeting came at the end of Board President Roz Berman’s monthly report, when Association attorney Ed Song took the microphone to address concerns related to the Trumpets lease. As part of his presentation, he revealed that he is finalizing a “memorandum of understanding” with the tenant that establishes a stringent process to be followed if the tenant ever wishes to obtain approval for gaming machines in the bar area of Trumpets.

First, Song commented about the “gaming prohibited” clause in the new lease. “As a practical matter,” he said, “as long as you, the members, don’t want gaming, it will not happen.”

Citing federal cases, Song said that courts throughout the United States have ruled on the meaning of clauses that contain words to the effect of the landlord “not unreasonably withholding consent.” “In a homeowners association,” Song said, “boards of directors must defer to the overall sentiment of the community. A board cannot act in a personal way based on the personal preferences of individual directors, but must act in accordance with the wishes of the members who elected them.”

To strengthen the case against gambling if residents do not want it, Song said he has nearly completed negotiating a “side arrangement” with the tenant that would use the following process if the tenant wanted to pursue gaming in Trumpets:

1. The tenant must conduct a ballot poll of all SCA homeowners.

2. The Board of Directors must approve the language of the ballot to assure fairness.

3. The tenant must pay for the entire cost of the polling, including postage.

4. The ballot counting will be administered by Sun City Anthem.

5. A total of 51 percent of all member households must vote to approve gambling in Trumpets.

Regarding Step 5, Song pointed out that the requirement would be very tough to meet, because it would require the affirmative vote of more than 50 percent of ALL SCA rooftops, not just a percentage of those who happen to cast ballots. This translates to a vote of 3,573 homes in favor of the proposal.

Board Treasurer Shirley Cheri added that if the tenant were ever to have gaming machines –presumably video poker- in Trumpets, the type of commercial zoning for Trumpets would allow for only 5 machines.

During member comments after Song had spoken, resident Kay Frank maintained that the “gaming prohibited”clause had been inserted in the lease “illegally” and she said that Roz Berman had acted illegally in making “last-minute, unapproved changes.”

Mrs. Frank’s husband, former Director Bob Frank, supported her comments. He said he was “insulted” by some of Attorney Song’s comments regarding some people who have protested the lease. “The point is not about gaming itself,” Frank said, “but about process. Gaming language doesn’t belong in the lease.” He also claimed the Board was “not aware of the language” in the lease.

In reply, Roz Berman said, “Every Board member had the lease a week ahead.” She also noted after the meeting that the lease she signed was the lease that was in the Board Book and that each Board member was also provided with the final proposed lease revisions and asked to study them and express any concerns they had before the Board meeting at which the lease was approved.

Reporter’s Notes: Immediately after the meeting, several of the lease objectors, including Bob and Kay Frank, as well as Nathan Sonnenfeld. engaged in animated discussion with Attorney Song. Kay Frank said she plans to file an Ombudsman intervention affidavit charging Roz Berman with illegally changing the lease without Board knowledge or approval. When I commented that Roz Berman had stated that all Board members had the final lease in their Board Books in advance of the May 28 Board meeting, Bob Frank, obviously referring to Director Weinstein, replied, “Well, at least one Board member says he did not have it.”

Carl Weinstein, who was observing the discussion, then said that the final version of the lease was not in his Board Book in advance of the May 28 meeting.

This flies in the face of the following facts: First, Carl did not say at the May 28 Board meeting that he had not seen the lease. On the contrary, he stated that he was voting against the lease –which he did do- because he objected to the indemnification clause that was in it.

Then, in a posting to Ron Johnson’s blog on July 13, Mr. Weinstein wrote as follows: “The Board Book for June (I think he meant for May) was at least 6  inches thick. I cannot swear that the final lease was or was not in it.”

So what we have here is Mr. Weinstein stating that he did not have the lease in his Board Book before the vote, despite the fact that he wrote on a blog that he cannot verify, one way or the other, that the lease was in the book.

I would think Mr. Weinstein AND Mrs. Frank would be on shaky ground with regard to a complaint to the Ombudsman. I further believe that Mr. Weinstein’s six Board colleagues would probably state under oath that the lease was in their Board Books in timely fashion and that they were aware of what they were voting on. – I fail to see how this would help Mr. Weinstein if the matter moves forward as Mrs. Frank suggested it will.

Breaking News: Another Trumpets Milestone

The steady march toward the reopening of Trumpets reached another milestone tonight (July 16) when the Henderson Planning Commission voted unanimously to approve the application of Sun City Anthem Community Association for a conditional use permit for the “Restaurant with Bar.”

Board of Directors Treasurer Shirley Cheri represented Sun City Anthem at the public hearing.

During public comment on the matter, two SCA residents, Nathan “Sonny” Sonnenfeld and Bob Frank, spoke against what they said was a Trumpets lease that would allow the tenant to bring gambling into the facility. They urged the Planning Commission to either add a gaming prohibition into their approval of the conditional use permit or table the matter for further investigation and discussion.

Under questioning, Shirley Cheri stated that the lease prohibits gaming.

Planning Commission Chairman Dan Shaw said that negotiation of lease terms must be between landlord and tenant.

Asked by the Chairman to comment on the issue, an assistant city attorney said, “Lease restrictions must be addressed with the Board of Directors. The City has no authority to mandate against gaming in the lease.”

Reporter’s Comments: The Conditional Use Permit approved by the Planning Commission is for a facility without gambling. If gambling were ever to be sought for Trumpets, a new permit with gambling would have to be sought and obtained. Meanwhile, the aforementioned Sonny Sonnenfeld, commenting on another blog today, says he has filed about a half-dozen complaints against the Board with the Nevada Division of Real Estate’s Ombudsman’s Office, and he implored others to file complaints about the Trumpets lease.