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HomeMy WebLinkAbout11 - Pier EncroachmentsTO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Public Works Department David A. Webb, Public Works Director 949- 644 -3311, dawebb @newportbeachca.gov . PREPARED BY: Chris Miller, Harbor Resources Manager 949 - 644 -3043, cmiller @newportbeachca.gov APPROVED: TITLE: Consideration of Ordinance Amending Newport Beach Municipal Code Sections 17.35.020(F) and 17.60.060 Relating to Piers that Encroach in Front of Adjacent Properties and .Commercial Indemnity, Respectively ABSTRACT: The City of Newport Beach ( "City") manages public tidelands on behalf of the State of California. Through this management, the City allows private individuals to construct and maintain piers. A small number of these piers encroach in front of adjacent upland properties. Currently, when these encroaching piers are transferred, a new permit is required to be processed by the Harbor Commission rather than by staff through an administrative process. At the August 13 and September 10, 2013 City Council meetings, the City Council directed staff to return with an ordinance that allows staff to administratively process intra - family transfers, while maintaining Harbor Commission review for all other encroaching pier permits. The revised ordinance removes language allowing for transfers between related business entities, clarifies existing language and codifies commercial pier indemnity requirements in the Newport Beach Municipal Code ("NBMC"). RECOMMENDATION: (Select only one) 1) Conduct first reading of Ordinance No. 2013 -15 amending NBMC Sections 17.35.020(F) and 17.60.060 to allow certain administrative transfers of encroaching tidelands permits, clarify existing language, codify commercial pier indemnity language and pass to a second reading on October 8, 2013; or 2) Do not amend the NBMC and maintain the current process. 1 of 57 Consideration of Ordinance Amending Newport Beach Municipal Code Sections 17.35.020(F) and 17.60.060 Relating to Piers that Encroach in Front of Adjacent Properties and Commercial Indemnity, Respectively September 24, 2013 Page 2 FUNDING REQUIREMENTS: There are no funding requirements associated with either recommendation. DISCUSSION: As discussed at the August 13 and September 10, 2013 City Council meetings, there are a small number of piers that encroach in front of adjacent abutting upland properties (i.e., piers /floats encroach over the extension of their property lines into water area in front of a neighbor). These piers have existed for some time, and were allowed to encroach for various reasons at the time they were built decades ago. NBMC Section 17.35.020(F) currently requires that a new permit be approved by the Harbor Commission when an abutting upland property associated with a pier permit changes ownership. This is in contrast to the majority of pier permits within Newport Harbor that are administratively processed by Harbor Resources staff. Please see the previous staff reports in Exhibits C and D. Essentially, what is before the City Council is the question of whether the small number of piers in Newport Harbor ( <10) that encroach in front of adjacent upland property should be processed by the Harbor Commission or staff when transferred between family members. There have been some questions regarding what the ordinance will do and not do if adopted. If adopted, the ordinance will.- Allow family members to submit pier transfer applications for administrative review by Harbor Resources staff upon transfers in uplands ownership among family members or the death of a permittee. If adopted, the ordinance will not. Change the requirement that all other encroaching pier applications be submitted for review by the Harbor Commission, including, but not limited to: (1) changes in the use of existing piers; (2) applications not involving family members; (3) changes in the use of abutting upland property; and (4) destruction of the existing pier. The attached ordinance relates to all similarly situated piers and is not focused on any individual permittee. The attached ordinance does not approve or even consider any applications that have been submitted, or may be submitted, to change the existing uplands use associated with an encroaching pier. If adopted, a person will still be required to obtain all separate approvals required to operate a business from the encroaching pier (e.g., Marine Activities Permit, etc.). 2 of 57 Consideration of Ordinance Amending Newport Beach Municipal Code Sections 17.35.020(F) and 17.60.060 Relating to Piers that Encroach in Front of Adjacent Properties and Commercial Indemnity, Respectively September 24, 2013 Page 3 ENVIRONMENTAL REVIEW: Staff recommends the City Council find this action is not subject to the California Environmental Quality Act ( "CEQA ") pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. NOTICING: This agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers this item). Submitted by: David A. Webb Public Works Director Attachments: A. Ordinance No. 2013 -15 Amending Sections 17.35.020(F) and 17.60.060 B. Redline version of amended NBMC Sections C. Previous staff report from September 10, 2013 D. Previous staff report from August 13, 2013 3 of 57 ATTACHMENT A ORDINANCE NO. 2013 - AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, CALIFORNIA AMENDING SECTIONS 17.35.020(F) AND 17.60.060 OF THE NEWPORT BEACH MUNICIPAL CODE TO ALLOW CERTAIN ADMINISTRATIVE TRANSFERS OF TIDELANDS PERMITS AND TO REQUIRE COMMERCIAL TIDELANDS USERS TO DEFEND AND INDEMNIFY THE CITY OF NEWPORT BEACH WHEREAS, pursuant to the 1978 Beacon Bay Bill, as amended, ( "Beacon Bay Bill ") the City of Newport Beach ( "City ") acts on behalf of the State of California as the trustee of tidelands located within the City's limits, including Newport Harbor; and WHEREAS, Section 1(b) of the Beacon Bay Bill and Title 17 of the Newport Beach Municipal Code ( "NBMC ") allow the City to authorize third parties to use tidelands for commercial and noncommercial purposes for a term not to exceed fifty (50) years; and WHEREAS, the City allows persons to operate and maintain commercial and noncommercial piers upon the tidelands under an annually issued permit or lease; and WHEREAS, a small number of piers encroach in front of adjacent abutting upland property not leased or owned by the permittee; and WHEREAS, currently when a permit associated with a pier that encroaches in front of adjacent abutting uplands property is transferred the new permittee is required to seek a new permit from the Harbor Commission; and WHEREAS, the City desires to amend the NBMC to allow these types of permits to be transferred administratively, when the transfer is between family members; and WHEREAS, the City desires to codify the indemnity obligation previously approved by the City Council for commercial tidelands permits and leases. NOW THEREFORE, the City Council of the City of Newport Beach ordains as follows: 4 of 57 Section 1: Subsection 17.35.020(F) of the Newport Beach Municipal Code is hereby revised in its entirety to read as follows: F. Encroaching Piers and Floats. 1. In areas where existing piers and floats encroach in front of abutting upland property owned or leased by others, a new permit approved by the Harbor Commission shall be required upon: a. Any change in type of existing use of the piers and floats; b. Any change in type of existing use of the abutting upland property owned or leased by the permittee; and /or c. Any destruction of the pier and float in which over sixty (60) percent of the replacement value of the pier and float has been destroyed. 2. In areas where existing piers and floats encroach in front of abutting upland property owned or leased by others, an existing permit may be transferred, to the extent permitted by this Subsection, or a new permit obtained upon: a. Any change of the existing ownership or lease of the abutting upland property owned or leased by the permittee; b. The death of the permittee. In accordance with Subsection 17.60.030(C)(4), the City Manager or Harbor Resources Manager shall have authority to process an administrative transfer . of an existing permit pursuant to Subsections 2(a) and (b) between Immediate Family Members. For purposes of this Subsection, "Immediate Family Members" shall mean the permittee's grandfather, grandmother, father, mother, brother, sister, wife, husband, child or grandchild. The Harbor Commission shall process all other permits required by this Subsection. 3. At least ten (10) calendar days before the Harbor Commission, City Manager or Harbor Resources Manager acts on a permit under this Subsection, the owner of the abutting upland property, in front of which the harbor facility encroaches, shall 2 5 of 57 be notified in writing of the time and place at which the permit will be considered. 4. Appeals arising under this Subsection related to permits or leases shall be processed under Section 17.60.080, or any successor section. Section 2: Subsection 17.60.060(E) of the Newport Beach Municipal Code is hereby revised in its entirety to read as follows: E. Commercial uses provided under this Title 17 are exempt from any provision requiring involvement of the owner or long -term lessee of an abutting upland property. This Subsection's sole purpose is to allow a person to apply for a commercial pier permit or lease in front of abutting upland property not owned or leased by the person applying for the commercial pier permit or lease. Section 3: Subsection "F" is added to Section 17.60.060 of the Newport Beach Municipal Code to read as follows: F. All persons that receive a commercial permit or lease, whether it is a new permit or lease or a transferred permit or lease, from the City to use public trust lands shall, to the fullest extent permitted by law, indemnify, hold harmless and defend (with counsel approved by the City, which approval shall not be unreasonably withheld) the City, its elected officials, officers, employees, agents, attorneys, volunteers and representatives from and against any and all claims, demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses of every kind and nature whatsoever (individually, a "Claim" or collectively, "Claims "), which may arise from or in any manner relate (directly or indirectly) to the permit or lease including, but not limited to, the issuance of any permit or lease, the transfer of any permit or lease, the entry into any permit or lease, permittee's or lessee's occupancy or use, or permittee's or lessee's guests, invitees, sublessees, or licensees occupancy or use, of the public trust lands, or improvements including, but not limited to, any use involving petroleum based products, hazardous materials, hazardous waste and /or other hazardous 3 6 of 57 substances as defined by City, County, State or Federal laws and regulations. The permittee's or lessee's obligations in this indemnity shall not extend to the degree any Claim is proximately caused by the sole negligence or willful misconduct of the City, subject to any immunities which may apply to the City with respect to such Claims. This indemnification provision and any other indemnification provided elsewhere in an individual permit or lease shall survive the termination of said permit or lease and shall survive for the entire time that any third party can make a Claim. This indemnity obligation shall apply independent of whether it is explicitly placed within a particular commercial permit or lease. Section 4: The recitals provided in this ordinance are true and correct and are incorporated into the substantive portion of this ordinance. Section 5: If any section, subsection, sentence, clause or phrase of this ordinance is, for any reason, held to be invalid or unconstitutional, such decision shall not affect the validity or constitutionality of the remaining portions of this ordinance. The City Council hereby declares that it would have passed this ordinance, and each section, subsection, clause or phrase hereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses and phrases be declared unconstitutional. Section 6: The City Council finds the introduction and adoption of this ordinance is not subject to the California Environmental Quality Act ( "CEQX) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. Alternatively, the City Council finds the introduction and adoption of this ordinance is not a project under CEQA Regulation Section 15061(b)(3) because it has no potential for causing a significant effect on the environment. Section 7: The Mayor shall sign and the City Clerk shall attest to the passage of this ordinance. The City Clerk shall cause this ordinance, or a summary thereof, to be published pursuant to Charter Section 414. 4 7 of 57 This ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach, held on the _ day of 2013, and adopted on the._ day of 2013, by the following vote, to wit: AYES. COUNCILMEMBERS NOES, COUNCILMEMB ABSENT COUNCILMEMBERS KEITH CURRY. MAYOR THE CITY ATTORNEY'S OFFICE AARON C. HARP, CITY ATTORNEY ATTEST: LEILANI I. BROWN, CITY CLERK 5 8 of 57 ATTACHMENT B Redline Versions of Amended NBMC Section 17.35.020(F) and 17 60 060 Amendment of NBMC Section 17.35.020(F) Allowing Intra- Family F. Encroaching Piers and Floats. 1. In areas where existing piers and floats encroach in front of abutting upland property owned by others, a new permit approved by the Harbor Commission shall be required upon: 4a. Any change in type of existing use of the piers and floats; 2b. Any change in type of existing use of the abutting upland property owned or leased by the permittee; and /or 4c. Any destruction of the pier and float in which over sixty (60) percent of the replacement value of the pier and float has been destroyed. 52. -In areas where existing piers and floats encroach in front of abutting upland Property owned by others, an existing permit may be transferred to the extent permitted by this Subsection or a new permit obtained upon: a. Any change of the existing ownership or lease of the abutting upland property owned or leased by the permittee: b. The death of the permittee. In accordance with Subsection 17.60.030(C)(4) the City Manager or Harbor Resources Manager shall have authority to process an administrative transfer of an existing permit pursuant to Subsections 2(a) and (b) between Immediate Family Members For purposes of this Subsection "Immediate Family Members" shall mean the permittee's grandfather, grandmother, father, mother, brother, sister, wife husband child or grandchild The Harbor Commission shall process all other permits required by this Subsection. 9 of 57 3. At least ten (10) calendar days Bbefore the Harbor Commission, City Manager or Harbor Resources Manager acts on athe nPio permit under this Subsection, the owner of the abutting upland property, in front of which the harbor facility encroaches, shall be notified in writing of the time and place ^etOg —iaat which the Rew—permit will be considered. 4. Appeals arising under this Subsection related to permits or leases shall be processed under Section 17.60.080, or any successor section. Amendment of NBMC Section 17.60.060 to Clarify Indemnity Obligations & Abutting Upland Property Requirements 17.60.060 Public Trust Lands. The following restrictions shall apply to public trust lands under either a permit or a lease: A. Leases /Permits. In the event public trust lands are used by an entity other than the City, then that entity shall enter into a lease or permit with the City. Such leases shall provide lessees with a leasehold interest in the property for a period of at least five years, not to exceed a period of time as limited by the City Charter or applicable State law. Such permits shall provide permittees with an interest in the property for a period of twelve (12) months or less. B. Land Use. Leases and permits shall be for uses consistent with the public trust and Section 17.05.080. Preference shall be given to coastal- dependent uses. C. Public Access. Public access shall be provided in a manner consistent with applicable law. D. Revenue. Rent under this section shall be based upon fair market value, as determined by the City Council. Such determination shall be based, in part, upon the findings of a City - selected appraiser. E. Commercial uses provided under this Title 17 are exempt from any provision requiring involvement of the owner or long -term lessee of an abutting upland property. This Subsection's sole purpose is to allow a person to apply for a commercial pier 10 of 57 Permit or lease in front of abutting upland property not owned or leased by the person applying for the commercial pier permit or lease F. All persons that receive a commercial permit or lease whether it is a new permit or lease or a transferred permit or lease, from the City to use public trust lands shall to the fullest extent permitted by law, indemnify, hold harmless and defend (with counsel approved by the City, which approval shall not be unreasonably withheld) the City, its elected officials, officers, employees, agents attornevs volunteers and representatives from and against any and all claims demands obligations damages actions causes of action, suits, losses, judgments fines, penalties liabilities costs and expenses of every kind and nature whatsoever (individually, a "Claim" or collectively, "Claims ") which may arise from or in any manner relate (directly or indirectly) to the permit or lease including but not limited to, the issuance of any permit or lease the transfer of any permit or lease, the entry into any permit or lease, permittee's or lessee's occupancy or use or permittee's or lessee's guests invitees sublessees or licensees occupancy or use of the public trust lands, or improvements including but not limited to any use involving Petroleum based products, hazardous materials hazardous waste and /or other hazardous substances as defined by City County State or Federal laws and regulations. The permittee's or lessee's obligations in this indemnity shall not extend to the degree any Claim is proximately caused by the sole negligence or willful misconduct of the City, subject to any immunities which may apply to the City with respect to such Claims. This indemnification provision and any other indemnification provided elsewhere in an individual permit or lease shall survive the termination of said permit or lease and shall survive for the entire time that any third party can make a Claim This indemnity obligation shall apply independent of whether it is explicitly placed within a particular commercial permit or lease. 11 of 57 ATTACHMENT C ��WPOR� = CITY OF NEWPORT BEACH Mon° City Council Staff Report Agenda Item No. 21 September 10, 2013 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Public Works Department David A. Webb, Public Works Director 949 - 644 -3311, dawebb @newportbeachca.gov PREPARED BY: Chris Miller, Harbor Resources Manager APPROVED: TITLE: onsid6fation of Ordinance Amending Newport Beach Municipal Code Sections 17.35.020(F) and 17.60.060 Relating to Piers that Encroach in Front of Adjacent Properties and Commercial Indemnity, Respectively ABSTRACT: The City of Newport Beach ( "City") manages public tidelands on behalf of the State of California. Through this management, the City allows private individuals to construct and maintain piers. A small number of piers located upon the tidelands encroach in front of adjacent upland properties. When these encroaching piers are transferred, a new permit is required to be processed by the Harbor Commission rather than by staff through an administrative process. At the August 13, 2013 City Council meeting, the City Council directed staff to return with an Ordinance with clarifying language that allows staff to administratively process some transfers. Additionally, the tidelands permits and leases recently adopted by the City Council require commercial tidelands users to indemnify the City. For ease of use, it is proposed this indemnity obligation be placed within the Newport Beach Municipal Code ( "NBMC "). RECOMMENDATION: (Select only one) 1) Conduct first reading of Ordinance No. 2013- 15 amending NBMC Sections 17.35.020(F) and 17.60.060 to allow certain administrative transfers of encroaching tidelands permits and to require commercial tidelands users to defend and indemnify the City, and pass to a second reading on September 24; or 2) Do not amend the NBMC and maintain the current process FUNDING REQUIREMENTS: There are no funding requirements associated with either recommendation. 1 °filof 57 Consideration of Ordinance Amending Newport Beach Municipal Code Sections 17.35.020(F) and 17.60.060 Relating to Piers that Encroach in Front of Adjacent Properties and Commercial Indemnity, Respectively September 10, 2013 Page 2 DISCUSSION: As discussed at the August 13, 2013 Council meeting, there are a small number of piers which encroach in front of adjacent abutting upland properties (i.e., piers /floats encroach over the extension of their property lines into water area in front of a neighbor). These piers have existed for some time, and were allowed to encroach for various reasons at the time they were built decades ago. NBMC Section 17.35.020(F) currently requires that a new permit be approved by the Harbor Commission for these encroaching piers. The attached proposed Ordinance would allow staff to administratively process some transfers. Specifically, the City would have this authority when there is a change in ownership of the abutting upland property owner (i.e. immediate family members), a change in ownership of any entity that owns the upland property (i.e. between entities owned /controlled by the same person), or upon death of the permittee. Also included in this proposed Ordinance is clarifying language for an appeal, as well as codifying the indemnity obligations previously approved by the City Council for commercial tidelands permits and leases (see Exhibit B). ENVIRONMENTAL REVIEW: Staff recommends the City Council find this action is not subject to the California Environmental Quality Act ( "CEQA ") pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. NOTICING: This agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers this item). Public Works Director Exhibits: A. Ordinance No. 2013- 15 Amending Sections 17.35.020(F) and 17.60.060 B. Redline Version of Amended NBMC Section C. Previous staff report from August 13, 2013 2 of1%60f 57 Exhibit A ORDINANCE NO.2013 -15 AN 0R DIN ANNCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, CALIFORNIA AMENDING SECTIONS 17.35 020(F) AND 17.60.060 OF THE NEWPORT BEACH MUNICIPAL CODE TO ALLOW: CERTAIN ADMINISTRATIVE TRANSFERS OF TIDELANDS PERMITS AND TO REQUIRE COMMERCIAL; TIDELANDS USERS TO DEFEND AND INDEMNIFY THE CITY OF NEWPORT BEACH WHEREAS, pursuant to thal 1978 Beacon Say Bill, as ,amended, ( "Beacon Bay Bill') tf e City of Newport Beach ("City') acts on behalf of the State of California as the trustee, of tidelands located within the City's limits, including Newport Harbor; WHEREAS, Section 1(b) of the Beacon Bay Bill and: Title 17 of the New Beach Municip. al Code .( "NBMC ") allow the City to authorize third parties to use tidelands for corrmmerclaI a;nd noncommercial purposes for a term not to exceed flfty (50) years; WHEREAS, the City allows persons to operate and maintain commercial and noncommercial piers upon the tidelands under an annually issued permit or lease; WHEREAS, a small number of pier's enoraach . in front of adjaoent abutting upland property not controlledlowried by the;psrmittee, WHEREAS, currehtiy when a permit ;associated with :a .pier that encroaches "in front of adjacent abutting uplands property s..transferrecf the new permittee is required to seek a new permit from the Harbor Comr*slon; WHEREAS, the City desires to amend the NBM.G to allow these types of perrhits to be transferred administratively, 'when th,e transfer is lietwean family; members or 7. entities controlled /owned by the sarhe person; and WHEREAS, the City desires to ;codify the indemnity obligation previously approved b y the City Council for commercial tidelands, permits and leases. NOW THEREFORE; the City Councll of the C.'ity of Newport Beach ordains as follows:: 3 nfif if 57 Section 1: Subsection 17.35,020(F) of the Newport Beach Municipal Code is hereby revised in its entirety to read as follows: F. Encroaching Piers and Floats. 1. In areas where existing piers and floats encroach in front of abutting upland property owned by others, a new permit approved by the Harbor Commission shall be required upon: a.. Any change in type of existing use of the piers and floats; b. Any change in type of existing use of the abutting upland property owned by the permittee; and /or c. Any destruction of the pier and float in which over sixty (60) percent of the replacement value of the pier and float has been destroyed. 2. In areas where existing piers and floats encroach in front of abutting upland property owned by others, a permit shall be transferred; to the extent permitted by this Subsection, or a new permit obtained upon: a. Any change of the existing ownership of the abutting upland property owned by the permittee; b. Any change of the existing ownership of any entity that owns the abutting upland property; or o, The death of the permittee. In accordance with Subsection 17.60.030(C)(4),. the City Manager or Harbor Resources Manager shall have authority to process an administrative transfer of a permit pursuant to Subsections 2(a),(b) and (c) between Immediate Family Members or between entities wholly owned1controlied by the same person. For purposes of this Subsection; 'Immediate Family Members" shall mean the permittee's grandfather, grandmother, father, mother, brother, sister, wife, husband, or child. The Harbor Commission shall process.all other permits required by t his iSubsectiion. 3. At least ten (10) calendar days before the Harbor Commission, City Manager or Harbor Resources Manager acts on E 15 of 57 4 of 26 a permit under this Subsection, the owner of the abutting upland property, in front of which the harbor facility encroaches, shall be notified in writing of the time and place at which the permit will be considered. 4. Appeals arising under this Subsection related to permits or leases shall be processed under Section 17.60.080, or any successor section. Section 2: Subsection 17.60.060(E) of the Newport Beach Municipal Code is hereby revised in its entirety to read as follows: E. Commercial uses provided under this Title 17 are exempt from any provision requiring involvement of the owner or long -term lessee of an abutting upland property. This Subsection's sole purpose is to allow a person to apply for a commercial pier permit /lease in front of abutting upland property not owned or leased by the person applying for the permit. Section 3: Subsection "F" is added to Section 17.60.060 of the Newport Beach Municipal Code to read as follows: F. All persons that receive a commercial permit /lease, whether it is a new permit /lease or a transferred permit /lease, from the City to use public trust lands shall, to the fullest extent permitted by law, indemnify, hold harmless and defend (with counsel approved by the City, which approval shall not be unreasonably withheld) the City, its elected officials, officers, employees, agents, attorneys, volunteers and representatives from and against any and all claims, demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses of every kind and nature whatsoever (individually, a "Claim" or collectively, "Claims "), which may arise from or in any manner relate (directly or indirectly) to the permit/lease including, but not limited to, the issuance of any permit /lease, the transfer of any permit /lease, the entry into any permit /lease, permittee's /lessee's occupancy or use, or permittee's /lessee's guests, invitees, 3 16 of 57 sublessees, or licensees occupancy or use, of the public trust lands, or improvements including, but not limited to, any use 'involving petroleum based products, hazardous materials, hazardous. waste and/or other hazardous substances as defined by City, County, State or Federal laws and regulations. The permittee's /lessee`s obligations in this indemnity shall not extend to the degree. any Claim. is proximately caused by the sole negligence or willful iWsco.nduct of the City, subject to any immunities which may apply to the City. with respect to such Claims. This Indemnification, provision and any other indemnification provided elsewhere in an individual permit /lease shall survive the termination of said permit /lease and shall survive for the entire time that any third party can make a Claim. This indemnity obligation shall apply independent of whether it is explicitly placed within a particular commercial permit /lease. Section 4. The recitals provided in this ordinance are true and correct and are incorporated into the substantive portion of this ordinance. Section 5: If any .section, subsection, sentence, clause or phrase of this ordinance is, for any reason, held to be invalid or unconstitutional, such decision shall not affect the validity or constitutionality of the remaining portions of this ordinance. The City Council hereby declares that it would have passed this ordinance, and each section, subsection, clause or phrase hereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses and phrases be declared unconstitutional. Section G: The City Council finds the approval of this ordinance is not subject to the California Environmental Quality Act ( "CEQA ").pursuant to Sections 15080(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) the activity is not a project as defined in Section '15378) of the CEQA Guidelines, California Gode. of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. Alternatively,. the City Council finds the .approval of this ordinance is not a project under CEQA Regulation Section 15061(b..)(3) because it has no potential for causing a significant effect on the environment. CI 17 of 57 6 of 26 Section 7: The Mayor shall sign and the City Clerk shall attest to the passage of this ordinance. The City Clerk shall cause this ordinance, or a summary thereof, to be published pursuant to Charter Section 414. This ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach, held on the _ day of 2013, and adopted on the _ day of 2013, by the following vote, to wit: AYES, COUNCILMEMBERS NOES, COUNCILMEMBERS ABSENT COUNCILMEMBERS KEITH CURRY, MAYOR APPROVED AS TO FORM: THE CIT EY'S OFFICE AARON C. HARP, CITY ATTORNEY ATTEST: LEILANI I. BROWN, CITY CLERK 6i 18 of 57 7 of 26 Exhibit B Redline Versions of Amended NBMC Section 17.35.020(F) and 17 60 060 Amendment of NBMC Section 17.35.020(F) Allowing Intra- Family & Related Business Transfers F. Encroaching Piers and Floats. 1. In areas where existing piers and floats encroach in front of abutting upland property owned by others, a new permit approved by the Harbor Commission shall be required upon: 4a. Any change in type of existing use of the piers and floats; 2b. Any change in type of existing use of the abutting upland property owned by the permittee; and /or 4c. Any destruction of the pier and float in which over sixty (60) percent of the replacement value of the pier and float has been destroyed. 62. -In areas where existing piers and floats encroach in front of abutting upland Property owned by others, a permit shall be transferred to the extent permitted by this Subsection, or a new permit obtained upon: a. Any change of the existing ownership of the abutting upland property owned by the permittee; b. Any change of the existing ownership of any entity that owns the abutting upland property: or C. The death of the permittee. In accordance with Subsection 17.60.030(C)(4) the City Manager or Harbor Resources Manager shall have authority to process an administrative transfer of a permit pursuant to Subsections 2(a).(b) and (c) between Immediate Family Members or between entities wholly owned /controlled by the same person For purposes of this Subsection 19 of 57 8 of 28 "Immediate Family Members" shall mean the permittee's grandfather, grandmother, father, mother, brother, sister, wife, husband, or child. The Harbor Commission shall process all other permits required by this Subsection. 3. At least ten (10) calendar days 43before the Harbor Commission, City Manager or Harbor Resources Manager acts on athe new permit under this Subsection, the owner of the abutting upland property, in front of which the harbor facility encroaches, shall be notified in writing of the time and place n4ee #R @-iA t which the new permit will be considered. 4. Appeals arisinq under this Subsection related to permits or leases shall be Processed under Section 17.60.080, or any successor section. Amendment of NBMC Section 17.60.060 to Clarify Indemnity Obligations 17.60.060 Public Trust Lands. The following restrictions shall apply to public trust lands under either a permit or a lease: A. Leases /Permits. In the event public trust lands are used by an entity other than the City, then that entity shall enter into a lease or permit with the City. Such leases shall provide lessees with a leasehold interest in the property for a period of at least five years, not to exceed a period of time as limited by the City Charter or applicable State law. Such permits shall provide permittees with an interest in the property for a period of twelve (12) months or less. B. Land Use. Leases and permits shall be for uses consistent with the public trust and Section 17.05.080. Preference shall be given to coastal- dependent uses. C. Public Access. Public access shall be provided in a manner consistent with applicable law. D. Revenue. Rent under this section shall be based upon fair market value, as determined by the City Council. Such determination shall be based, in part, upon the findings of a City - selected appraiser. 20 of 57 9 of 26 E. Commercial uses provided under this Title 17 are exempt from any provision requiring involvement of the owner or long -term lessee of an abutting upland property. This Subsection's sole purpose is to allow a person to apply for a commercial pier Permittlease in front of abutting upland Property not owned or leased by the person applying for the permit. F. All persons that receive a commercial permit/lease whether it is a new Permit/lease or a transferred permit/lease from the City to use public trust lands shall to the fullest extent permitted by law, indemnify, hold harmless and defend (with counsel approved by the City, which approval shall not be unreasonably withheld) the City, its elected officials, officers, employees, agents, attorneys volunteers and representatives from and against any and all claims, demands obligations damages actions causes of action, suits, losses, judgments, fines, penalties liabilities costs and expenses of every kind and nature whatsoever (individually, a "Claim" or collectively, "Claims ") which may arise from or in any manner relate (directly or indirectly) to the Permit/lease including but not limited to, the issuance of any permit/lease the transfer of any permit/lease the entry into any permit/lease Permittee's /lessee's occupancy or use or Permittee's /lessee's quests, invitees sublessees or licensees occupancy or use of the public trust lands, or improvements including but not limited to any use involving petroleum based products, hazardous materials hazardous waste and /or other hazardous substances as defined by City County State or Federal laws and regulations The permittee's /lessee's obligations in this indemnity shall not extend to the degree any Claim is proximately caused by the sole negligence or willful misconduct of the City, subject to any immunities which may apply to the City with respect to such Claims. This indemnification Provision and any other indemnification provided elsewhere in an individual Permit/lease shall survive the termination of said permit/lease and shall survive for the entire time that any third party can make a Claim This indemnity obligation shall apply independent of whether it is explicitly placed within a particular commercial permit/lease. 21 of 57 10 of 26 Exhibit C �a�W,oaT = CITY OF NEWPORT BEACH City Council Staff Report Agenda Item No. 20 August 13, 2013 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Public Works Department David A. Webb, Public Works Director 949 - 644 -3311, dawebb @newportbeachca.gov PREPARED BY: Chris Miller, Harbor Resources Manager APPROVED: TITLE: Consideration of Ordinances Amending Newport Beach Municipal Code Sections 17.35.020(F) and 17.60.060 Relating to Piers that Encroach in Front of Adjacent Properties and Commercial Indemnity, Respectively ABSTRACT: The City of Newport Beach ( "City ") manages public tidelands on behalf of the State of California. Through this management, the City allows private individuals to construct and maintain piers. A small number of piers located upon the tidelands encroach in front of adjacent upland properties. When these encroaching piers are transferred, a new permit is required to be processed by the Harbor Commission, rather than by staff through an administrative process. The City Council may consider amending these transfer provisions to allow for administrative processing. Additionally, the tidelands permits and leases recently adopted by the City Council require commercial tidelands users to indemnify the City. For ease of use, it is proposed this indemnity obligation be placed within the Newport Beach Municipal Code ( "NBMC"). RECOMMENDATION: (Select only one) 1) Conduct first reading of Ordinance No. 2013 -15 amending NBMC Sections 17.35.020(F) and 17.60.060 to allow certain administrative transfers of encroaching tidelands permits and to require commercial tidelands users to defend and indemnify the City, and pass to a second reading on September 10, 2013; or 2) Conduct first reading of Ordinance No. 2013 -15 repealing NBMC Section 17.35.020(F) to allow the administrative transfer of all encroaching tidelands permits and amending NBMC Section 17.60.060 to require commercial tidelands users to defend and indemnify the City, and pass to a second reading on September 10, 2013; or 22 of 57 11 of 26 Consideration of Ordinances Amending Newport Beach Municipal Code Sections 17.35.020(F) and 17.60.060 Relating to Piers that Encroach in Front of Adjacent Properties and Commercial Indemnity, Respectively August 13, 2013 Page 2 3) Select neither option 1 or 2 and maintain the current process. FUNDING REQUIREMENTS: There are no funding requirements associated with either recommendation. DISCUSSION: Within. Newport Harbor, there are a small. number of piers which encroach in front of adjacent abutting upland properties.(i.e., piers /floats encroach over the extension of their property lines into water area in front of a neighbor), These piers have existed for some time, and were. allowed to encroach for various reasons at the time they were built. Sere examples In Exhibit A. NBMC Section 17.35.020(F) currently requires that a new permit be approved by the Harbor Commission for piers that encroach in front of adjacent upland property owned by others upon any of the following conditions: 1. Any change in type of existing use of the piers and floats; 2. Any change in type of existing use of the abutting upland property owned by the permittee; 3. Any change of existing ownership of the abutting upland property owned by the permittee or upon the death of the pernfittea; G. Any destruction of the pier and float in which oyez sixty (60) percent of the replacement value of the pier and float has been destroyed. In an effort to improve the pier permit transfer process staff has prepared two alternative ordinances for the City Council's consideration designed to address piers that encroach in front of adjacent abutting upland properties.. The first ordinance, attached as Exhibit B, amends NBMC Section 17,35.0 20(F) to allow ceCtaln transfers between family members or between related entities to be processed administratively, without the need for Harbor Commission review. This ordinance also amends NBMC Section 17,60,060 to codify the indemnity obligations previously approved by the City Council for commercial tidelands permits and leases. The second ordinance, attached as Exhibit C, repeals NBMC Section 17.35:020(F) in its entirety and allows for the administrative transfer of all pier permits. This ordinance also amends NBMC Section 17.60.0.60 to codify the indemnity obligations previously approved by the City Council for commercial tidelands permits and leases, There are no pioposed indemnity obligations for non - commercial (e,g, residential) tidelands users under either ordinance. The redline amendments to the NBMC are shown in Exhibit D. 23 of 57 12 of 26 Consideration of ordinances Amending Newport Beach Municipal, Code Sections 17.35.020(F). and 17,60-060 Relating to Piers that Encroach in Front of Adjacent PfOI)Orties and Commercial Indemnity, Respectively Aug ust 13, 2013 . Page 3 These proposals originated through the City Council and were not taken to the Harbor Commission for Considpration, ENVIRONMENTAL. REVIEW: Staff recommends the City Council find this action is not subject to the California Environmental Quality Act ("CEQA") pursuant to Sections 15060(c)(2) (the activity will riot result in a direct or reasonably foreseeable Indirect physical Chang I e I in the environment) and 1 %kcoj (the activity is not a project as defined in Section 1 6378) of the cE.QA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or NOTICING: This agenda item has been noticed according to the Brown Act (72 hours In advance of the meeting at which the City Council considers ers this item.). Submitted by: kw.. Ivid v Public Works Director Exhibits: A. Examples of Encroaching Commercial * * Piers B. Ordinance No. 2013--J-�-- Amending Sections 17.354020(F) and 17.60,060 C. Ordinance No. 2013--t6— Repealing Section I Amending Section. 17.60,060 7.35,020(F) and D. Redline Version of Ame . nded and Repealed NBMC Sections 24 of 57 13 of 26 Exhibit A 25 of 57 14 of 26 — i , `I Ali. l , +' �•� J3y S J0 s ♦- nQl r� {�tx* jby4• d, Y023 - 1021 _=1033 M V, 1025_ 1031 1029 _ - _ mom3 26 of 57 15 of 26 %7 . l 1I i a Newport Beach Disclaimer: Every reasonable effort has been made to assure the GiS accuracy of the data provided, however, The City of 0 Newport Beach and Its employees and agents cuY "R disclaim any and all responsibility from or relating to >? any results obtained in Its use Ifs 0 100 200 eG, y Imagery: 2009 -2011 photos provided by Eagle Feel Imaging M".eagleaedal.com 26 of 57 15 of 26 Exhibit B ORDINANCE NO, 2013 - — AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, CALIFORNIA AMENDING SECTIONS I7.35020(F) AND 17.60,060 OF THE NEWPORT BEACH MUNICIPAL CODE TO ALLOW CERTAIN ADMINISTRATIVE TRANSFERS OF TIDELANDS PERMITS AND TO REQUIRE COMMERCIAL TIDELANDS USERS . T . 0, DEFEND AND INDEMNIFY THE CITY OF NEWPORT 13EACH WHEREAS, pursuant to the 1976 Beacon Bay Bill, as amended, ("Beacon Bay. Bill") the .City of Newport Beach ('City") acts on behalf of the State of California as the trustee of tidelands located within the City's limits, Including Newport Harbor; WHEREAS, SbctiOn 1( ' 0) of the Beacon Bay $111 and Title 17 of the Newport Beach Municipal Code (`NBM 6 C") all, w the City to authorize third pairties to use .tidelands for commercial and hOncor . nmercial purposes for a term not to exceed fifty 60) years; WHEREAS, the City allows persons to operate and maintain commercial and noncommercial piers upon the tidelands. Under an annually issued permit or lease; WHEREAS, a small number of plers encroach in front of adjacent, abutting upland property not controlled/owned by the permittee; WHEREAS, Currently when a permit associated with a pier that encroaches in front of adjacent abutting uplands property is transferred the new Permittee Is required to seek a new permit from the Harbor Commission; WHEREAS, the City desires to. amend the NBMC to allow these typos of permits to be transferred administratively, when the transfer. is between . family members or entities controlled/owned by the same person; and WHEREAS, the City desires to codify the Indemnity obligation previously approved by the City Council for commercial tidelands permits and leases. NOW THEREFORE, the City Council of the City of Newport Beach ordains as follows: 27 of 57 16 of 26 Section 1: Subsection F(5) is added to Subsection 17,35.020(F) of the Newport Beach Municipal Code to read as follows: 5. This subsection shall not apply to the transfer of a permit between family members or between entities owned /controlled.bythe same person. Permits falling under this exception may be transferred administratively subject to approval by the City Manager or Harbor Resources Manager In accordance with Section 17.60.030(C)(4)`, Se.c...tion 2: Subsection "F" is added to Section 17.60.060 of the Newport Beach Municipal Code.to read as follows: F. All persons that receive a commercial permit or lease from the City to lase .public trust [ands shall as a condition of receiving the commercial permit or tease defend and indemnify the City. Unless different language is provided within a specific commercial permit or lease, the following indemnity language shall be.inciuded, in substantially the same form, within every commercial permit and lease: To the fullest extent permitted by law, permittee /lessee shall indemnify, defend (with counsel approved by the City, which approval shall not be unreasonably withheld) and hold harmless the City, its elected officials, officers, employees, agents, attorneys, volunteers and representatives from and against any and all claims, demands,. obligations; damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and. expenses of every kind and nature whatsoever (individually, a "Gaim' or collectively, "Claims "), which may arise from or in any manner relate (directly or indirectly) to this permit /lease including; but not limited to, permittoe's /lessee's occupancy and use, or permittee's /lessee's guests, invitees, sublessees, or licensees occupancy and use; of the public trust lands; or improvements including; but not limited to, any use involving petroleum based products, hazardous materials; hazardous waste and /or other Hazardous substances as defined. by City,. County, State or Federal laws and regulations. The pertnittee's /lessee's obligations in this indemnity shall not extend to the degree any Claim is proximately caused by the 28 of 57 17 of 26 sole negligence or willful misconduct of the City, Subject to any immunities which may apply to the City with respect to such Claims. This indemnification provision and any other indemnification provided elsewhere in this permit/lease shall survive the termination of this permit/lease and shall survive for the entire time that Any third party can make a Claim. Section 3: The recitals provided In this ordinance are true and correct and are incorporated into the Substantive portion of this ordinance. Section 4: If any section', Subsection, sentence, clause or phrase of this ordinance is, for any reason., field to be invalid or unconstitutional, such decision shall not affect the. validity or constitutionality of the remaining portions of this ordinance. 'rho city Council hereby declares that it Would have passed this ordinance, and each , ch section,. subsection, clause or phrase hereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses and phrases be declared Unconstitutional. Section 5' The City Council finds the approval of this ordinance is riot subject to the California Environmental Quality Act ("CEQA') pursuant to Sections 16060(c)(2) (tile activity will not result in a direct or reasonably foreseeable, indirect physica,l change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the Cf:-QA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting In physical change to the environment, directly. or indirectly. Alternatively, ernatively, the City Council finds the approyal of this ordinance is.not a project under CEQA Regulation Section 15061(b)(3) because it has no potential for causing a significant effect on the environment. Section 6: The Mayor shall sign and the City Clerk shall attest to the passage of this ordinance. The City Clerk shall cause this ordinance, or a summary thereof, to be published pursuant to Charter Section 414, 3 29 of 57 18 of 26 This ordinance was Introduced at a regular meeting of the City Council of the City of Newport Beach, held on the _ day of , 2013, and adopted on the _ day of 2013, by the following vote, to wit: AYES, COUNCILMEMBERS NOES, COUNCILMEMBERS ABSENT COUNCILMEMBERS KEITH CURRY, MAYOR APPROVED AS TO FORM: THE �C/ITY�ATTORNEY'S OFFICE AARON C. HARP, CITY ATTORNEY ATTEST: LEILANI 1. BROWN, CITY CLERK 30 of 57 19 of 26 Exhibit 0 ORDINANCE NO. 2013 - AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, CALIFORNIA REPEALING SUBSECTION 1736,020(F) AND AMENDING SECTION 17.60. .666 OF THE NEWPORT BEAC14 MUNICIPAL CODE TO REQUIRE COMMERCIAL. TIDELANDS USERS TO DEFEND AND INDEMNIFY THE CITY OF NEWPORTBEACH WHEREAS, pursuant to the 1078 Beacon Bay Bill, as amended; ("136acon bay Bill") the City of Newport Beach (''City') acts on behalf of the State of California as the trustee of tidelands located within.1he City's limits, including Newport Harbor; WHEREAS, Section 1(b) of the Beacon Bay Bill and Title 17 of the Newport Beach Municipal Code ( NBMCI") allow the he City to authorize third parties t I o use tidelands for commercial and noncommercial I a[ Purposes for a term not to.exce I e I d I fifty (50) .years; WHEREAS, the City allows persons to operate and maintain commercial and noncommercial piers upon the tidelands under an annually Issued permit or lease; WHEREAS, a small number of piers encroach in front of adjacent abutting upland property not controlled/owned.by the perml tte.e; WHEREAS, currently when a permit associated with a pier that encroaches in front of adjacent abutting uplands property is transferred the new permittee I I s required to seek a new permit from the Harbor Co rnm ission; WHEREAS, the City desirep, to repeal NWO Subsection 17,36.020fl to allow these Wes of permits to be transferred administratively, Similar to the transfer of other tidelands permits; and WHEREAS, the City desires to codify the indemnity obligation preVIOUSly approved by the City Council for commercial tidelands permits and leases, NOW THEREFORE, the City Council of the City of Newport Reach ordains as follows: Section 1: Subsection 17.35,.0.20(F) of the Newport Beach Municipal Code is hereby repealed In Its entirely, 31 of 57 20 of 26 Section 2: Subsection T" is added to Section 17.60.060 of the Newport Beach Municipal Code to road as follows: F. All persons that receive 0 commercial permit or lease from the City to Use public trust lands shall as a condition of receiving the commercial permit or lease defend and indemnify the City. Unless different language is provided within a specific commercial permit or lease, the following indemnity language shall be included, in substantially the same form, within every commercial permit and lease: To the fullest extent permitted by law, permIttee/lessee shall indemnify, defend, (With, counsel approved by the City, which approval shall not be unreasonably withheld) and hold harmless the City, Its elected officials, officers, ern ployeiss, agents,, attorneys, volunteers and representatives from and against any and all claims, demands, obligations, damages actions, ba-USOS of action, suits, losses, judgments, fines, penalties; liabilities, costs and expenses of every kind and nature whatsoever (individually, 6 "Claim" or collectively, "Claims "), which may arise from or in any manner relate (directly or indirectly) to this permit/lease including, but not limited to, permittee's/lessee's occupancy and use, or perrnittee's/lessee`s guests,. invitees, sublessees, or licensees occupancy and. use, of the public trust lands, or Improvements Including, but not Ilmited.to, any use involving petroleum based products, hazardous hazard . oug waste and/or other hazardous substances as defined by City; County, State or rederal laws and regulations, The permittee's/los,sae's obligations in this indemnity shall not extend to the degree any Claim is proximately caused by the sole negligence or willful misconduct of the City, subject to any immunities which may apply to the City with respect to such Claims. This indemnification provision and any other indemnification provided elsewhere in this permit/lease shall survive the termination of this permit/lease and shall survive for the entire time that any third party can make a Claim. 2 32 of 57 21 of 26 Section 3: The recitals.:provided in this ordinance are true and correct and are incorporated into the substantive portion of this ordinance. Section 4: If any section, subsection, sentence, clause or phrase of this ordinance is, for any reason, field to be invalid or unconstitutional, such decision shall not affect the validity or constitutionality of the remaining portions of this ordinance, The City Council hereby declares. that it would have passed this ordinance, and each section, subsection, clause or phrase hereof; irrespective of the fact that any one or more sections, subsections, sentences, clauses and phrases be declared unconstitutional. Section 5: The City Council finds the.approvai of this ordinance is not subject to the California Environmental Quality Act ( "CEQA ") pursuant to Sections 15060(c)('2) (tile activity will not result in a direct or reasonably foreseeable indirect physical change in ,the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CE CA Guidelines, California Code of Regulations, Title 14, Chapt =r 3, because it has no potential for resulting in physical change to the environment; directly or indirectly. Alternatively, the City Council finds the approval of this ordinance is not a Project under CEQA Regulation Section - 15061(b)(3) because it has no potential for causing a significant effect on the environment Section f: The Mayor shall sign and the City Clerk shall attest to the passage of this ordinance. The City Clerk shall cause this ordinance, or a summary thereof, to be published pursuant to Charter Section 414. 33 of 57 22 of 26 This ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach, held on the _ day of _, 2013, and adopted on the day of 2013, by the following vote, to wit: AYES, COUNCILMEMBERS NOES, COUNCILMEMBERS ABSENT COUNCILMEMBERS KEITH CURRY, MAYOR APPROVED AS TO FORM: THE CITY ATTORNEY'S OFFICE (k") AARON C. HARP, CITY ATTORNEY ATTEST: LEILANI I. BROWN, CITY CLERK 4 34 of 57 23 of 26 Exhibit D Redline Versions of Amended NBMC Section 17.35.020(F) and 17 60 060 Amendinent of NBMC Section 17.35.020(F) Allowing Intra•Family Transfers F. Encroaching Piers and Floats. In areas where existing piers and floats encroach in front of abutting upland property owned by others, a new permit approved by the Harbor Commission shall be required upon: 1. Any change in type of existing use of the piers and floats; 2. Any change in type of existing use of the abutting upland property owned by the permittee; 3. Any change of existing ownership of the abutting upland property owned by the permittee or upon the death of the permittee; 4. Any destruction of the pier and float in which over sixty (60) percent of the replacement value of the pier and float has been destroyed. 5. This subsection shall not apply to the transfer of a permit between famlIv members or between entities owned /controlled by the same Person Permits falling under this exception may be transferred administratively subject to approval by the City Manager or Harbor Resources Manager In accordance with Section 17.60.030(C)(4). Before the Harbor Commission acts on the new permit, the owner of the abutting upland property, in front of which the harbor facility encroaches, shall be notified in writing of the meeting in which the new permit will be considered. Repeal of NBMC Section 17.35.020(F) F. - €nsreaehing- Piers and-- Fteats. lei reas-wheFe-ex+siing -piers -and €leatsensreac-h4f; front- ef-abLitting upland- preperty-ewned -hy- others, a- new - permit appreved-by- that= larber Commis& shattbaregWred uper} 1— Any- shange4n4ype -off existing- usaef- the-pier4and Heats; 35 of 57 24 of 26 2: - -- Any- shartge -in4ype -e€- existing dse ef- the abetting- upland- preperty-owned_by the- pefmittee: 3. Any - change -efexi sting -ownership -ef- the-abu4ting- aptand- preped"wned -by the- peFMittee a ittee; 4. Any- destFu"oR -ef the -pieFand float - IR-whiGh -4ver -Sixtj (rag)- perSent- of-{he raptaseRaent_vatue -ef- the pier and- float -has bee"astfeyed: Bafere the idarbef Gernmisslen- asts-OR the newper -mit,4heewner- ei4he- abeit4Rg4pt and property iR- front- €-which the- harbar-4acility encroaches- shalt- be-Ret #ied4n- writiRg -af the4neet4ng4n- whisl444e -Rew- permit- will -be considered: Amendment of NBMC Section 17.60.060 to Clarify Indemnity Obligations 17.60.060 Public Trust Lands. The following restrictions shall apply to public trust lands under either a permit or a lease: A. Leases /Permits. In the event public trust lands are used by an entity other than the City, then that entity shall enter into a lease or permit with the City. Such leases shall provide lessees with a leasehold interest in the property for a period of at least five years, not to exceed a period of time as limited by the City Charter or applicable State law. Such permits shall provide permittees with an Interest in the property for a period of twelve (12) months or less. B. Land Use. Leases and permits shall be for uses consistent with the public trust and Section 17.05.080. Preference shall be given to coastal- dependent uses. C. Public Access. Public access shall be provided in a manner consistent with applicable law. D. Revenue. Rent under this section shall be based upon fair market value, as determined by the City Council. Such determination shall be based, in part, upon the findings of a City - selected appraiser. 36 of 57 25 of 26 E. Commercial uses provided under this Title 17 are exempt from any provision requiring Involvement of the owner or long -term lessee of an abutting upland property. 37 of 57 26 of 26 HMMY S. CAnfACx ATTORNEYAT tAW i' 2 474 E. 17th Street, Suits;2ol / Costa Mesa, Calffomfa 92627 7eF:949•642 -5548' Fax 949. 642.1588 E -mail: hcemiack@pacbeii.nst August 15, 2613 Newport Beach City. Council Gity:afNewpot #Beach 100 Civic;Center Drive Nev port Beach; CA 9.2660 Re: Newpor7:Beach City Council Regular MeetingofAugust 13, 2613 .Currentl3usinessAgendaltem No, 20 Honorable Council Members: . I xeprasent John Vallely, owner ofthe property at S08 South Bay Frarit, Balboa . Island, I have also been aiesident afNdwport Beach for almost 40 years. Mr: Vallely'.a property is one of tho properties iddntrftdd by City staff as:affected by the proposdd amendments to NBMC Sections 17.35.02d(F }:and 17.60060 — ltexn T�1o. 20'on the Agenda For August 13, 2013, It is rtry understanding these propasdd amextduxents come from the City Attorney's office, and have been nrxder discussion for some time. _ however, iE is probably fair to say the Validly dock situation may have prompted: the CityAttorney's. office -to propose the amendments at thxa time. My understanding is that the Vallely. dock Presents a situation not encountered previously by the Cxiy's current llarbar,Resotirce Depadment, but.one that will be cn6buatered for other properties in.the future, Initially, it is important to understand what Mr. Vallely asked.the Harbor Resources Department to do. Mr. Vailely's parerrfs owned and resided at 50$ South Bay Front for over 75 years, Following his rnaihdrIs death in 2412, and the admit istration of his mother's irusitltat held title to 508 South Bay Front, Mr, Vallely's trust became the owner of the property. Mr. Vallely subsequently applied£rsr a transfer of the cammere al pier permit, held in the name of his parents. to bis. trust. There is nothing more to the application— it is simply a request to change the name on the commercial 'pier permit following the parent/child transfer. Citing current N13MC Section 1735i=(F)(3), the Harbor Resource Manager took the position that Mr, Vallely, rnmst go through the process of applying for new cornrnercial pier permit: Mr. Vallely disputes this interpretation and is prepared to frle.a writ in.5upertoYCourt to compel the transfer. Among other reasons, Mr. Vallely disputes the d ®vision because 5ectiori 17.60.ti60R exempts eomniercial piers from the provisions of Secioon 19..35.020(JF)(3 }, 38 of 57 Newport Beach City Council City of Newprt Beach. August 15, 200 Page 2 of .4 At Tu.e.9day night's council meeting, several speakers during public comment grossly ntsrepr66nted the status of the Vallely dock matter, In watching the meeting on television, it appeared to ind a6meMembers might have been influenced by these misrepresentations, or concerned about the proposed amendments based on these m.isfOresOntitibris.. for that reason, 1 feel it is necessary-to correct the misrepresentations. 0 . Nfembenba.Ve the correct Wormatiah. First,604traryto the repeated representations of the adjacent pwpertyo*ner at SIP. South Bay. Front, andb6t, attorney, the Vallely dock is not an illegal structure oruse. The attorney shq4ld know better than to make such an incorrect representation to the A "legal continue a lawful rionconform Enterl)rises, The, v. Board of S 508 South Day Front m 1935. The property had an ex a War DepWme.nt Permit by f goats and three anchor piles it the extended property line oft a boat rental andloi- boat slip re property taxes on this dqr,k, spc their property, hr over 75 yeah According to City staff orharborpolicies when Roland When policies were:adoi "er1PrMAcd'.',across a neighbor Harbor Pe t Policies.) The N permits and existing plides fo I ,tedIthe speakers, when he stated that the dock was not brMM'9 use." ;el> is '�i lawful use,existing on the effective date oft he nice time in nonconformance. to the ordinance." 127 Cal.App,2d 442, 4$3.) AproPqrV owner 1, as a otproperty and isnotre i qWre dto obtain lispecial use Weexisting uses. (60 of Ukiah v. County of 4 of tit does not affect the right to t7, 56,) transfer d .so I which mns with the land. (Ranson Brothers visors of evada Couaty {1996),12 Cal.0 53.3,i.540.) archased by Roland Vallely, John Vallely! . s father, in rpier. On April 27, 19,36, Roland Vallely was granted rmy Corps of Engineers to construct two wooden ito . nisakis"g These- floats and , pilings crossed Ijacent property:at 510 South BAY Front. On. July 18, ,' approval of the dWfidi.of 510 h Sout .. ByFr.ontand Ostractedhave been used and *maintained in. the same years. . . The Vallely family *has operated the marina w for the entire 75 years.. The Valfely family has paid wally listed by the tax assessor as an improvement to irts in 1965 and 1966, there were no City pi ftely erpermits constructed to additions to the Per i in 1936 and it, was legal to construct cornmerbial-piers that xtefided Oio*tY line, (Section 1 -R of the former l� y dook was: a 14,wftil use in complimicewithoriginal nose thirty years, On January 9;1967, the Ci , ty 39 of 57 Newport Beach City Council City of Newport Beach Aiigust.15; 2013 Page 3. of 4 futhorized the addition. of Section.29 to the then Harbor Permit Policies. This Section 29 )ertained to the: elimination of encroaching pier and float facilities. At that time, the Jallelycomtnorci al. dock became a `?legal non - conforming use," and remains a "legal ion- coriformmg use" to this day. The dock :is not an illegal structure or use. The an of priot:Seetion 29 carries forward almost verbatim in today's Section Second, contraryto what several speakers represented to the Council; Mr. Vallely has not applied ,fora new business permit and has not expanded or changed the 75 -year use:of the dock. The information provided by these speakers is a complete fabrication. The ` Vallely family.lxas held a business license for their commercial use foralmost 75 yearn .first m :the.name of Roland'Vallely, and since 1972 in the name of the Vallely Family. Trust.. The.business license is renewed annually by paying the license,fee. John Vallely recentlyranewed the license as required by paying_the annual fee, and, since his trust is now the property owner, put the license. in his trust's name, There is no application for anew license. Nothing has changed with the respectto the dock grits , use. The representations that 1Vlr. Vailoly is doing something that changes the parking situation nas it has always existed are fatm The dock space is cxclusivcly leased to boat owners, just as it has been for over the last 30 years, Finally, let me provide Borne history on the adjacent property- 510 South Bay Front. I feel it is impoitant since that.,property owner now opposes the amendments to these ordinances; 510 is the end property of the city.block that was. originally zoned for commercial use. It.borders, Opal Street, with the City's pier extending from the and of Opal Street. An aerial photograph taken in 1952 shows .a sandwich shop stand at 510, the Vallely dock, commercial businesses, a gas dock; etc., along the block. The commercial block is currentl} zoned Mix Use Water Related, wliicli allows commercial uses: Valloly's commercial use is an approved use. According to John Vallely, who grew up at 5.08 next door, sometime:n:the 1970's. the owner of 510.applied for and down -zoned the 510 property hi ardor to build a duplex on the property. In other words, a prior owner of 510, for that owner's own economic benefit, created a situation wherein 510 became a lane, residential -zoned property at the end of the commercial4oned block. There are to, this day "encroaching" commercial . docks on the entire 500 block, and on the 400 block on the other side ofthe ferry at Agate Street: Thissituetion was visible to.anyone who purchased 510, yet the current owner I of . 510 now opposes amendments to the ordinances that would allow these commercial, dock owners,to be treated like .everyone else in the harbor, i.e., to he allowed to transfer their . . commercial dock permit to a familym=her or related 'entity without applying for a new Permit:.. .: .. 40 of 57 Newport Beach City Council City of NewgortPeaoh August 1.51 2013 Page 4 of 4 I've already indicated the prior property owner at 510 gave his approval to construct the "encroaching" dock in 1438, approval that was subsequently put in a written, notarized letter. The current owner of 510 doesn't want to recognize Vallely's vested:rrght to maintain the existing dock, a right that vested between the property owners when her predecessor at S 10 approved the construction of dock and V allely paid for. the.cbristruction. This vested right runs with the land and is transferable to subsequent.: owners. Instead, the current:owher at 5l0 is trying to accomplish her goal, the #emovai of the encroaching dock, by urging the City to require Vallely to apply for a new permit for the dock one:that she will strenuously oppose: Vallofs, position is that his right to the current permit is also a vested right between Vallely and the City, that the mment permit Is transferable as a matter of law, and that the City maynot require Vallely to apply fora new permit. Members may recognize this position as asserting what is eomnronly, , referred to as' "grandfathered" rights: Vallely is asserting rights held before changes to City ordinances: The bottom line is that the current owner of 510 South Bay Front knows that as between her and Vallely, she has no legal right to remove the enoroaching dock. She bought the property with frill knowledge ofthe encroachment, and had everyright to investigate Vallely's vested right to maintain; the dock pursuant to the prior owner's permission to build. it. She threatened legal action through her same attorneynine years ago, but has done nothing bedause she knows she has no 'iemedy at law. Now; she is trying to reach Ivor goal by opposing amendments to the ordinances that would treat: Vailely like. everyone else in the harbor - amendments that-should avoid legal action between Vallelyand the City: I would lie more than happy.to discuss the Vallely dock situation with any Member, 41 of 57 ATTACHMENT D = CITY OF NEWPORT BEACH City Council Staff Report Agenda Item No. 20 August 13, 2013 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Public Works Department David A. Webb, Public Works Director 949 - 644 -3311, dawebb @newportbeachca.gov PREPARED BY: Chris �Miller, �Harbor Resources Manager APPROVED: TITLE: Consideration of Ordirnnces Amending Newport Beach Municipal Code Sections 17.35.020(F) and 17.60.060 Relating to Piers that Encroach in Front of Adjacent Properties and Commercial Indemnity, Respectively ABSTRACT: The City of Newport Beach ( "City ") manages public tidelands on behalf of the State of California. Through this management, the City allows private individuals to construct and maintain piers. A small number of piers located upon the tidelands encroach in front of adjacent upland properties. When these encroaching piers are transferred, a new permit is required to be processed by the Harbor Commission, rather than by staff through an administrative process. The City Council may consider amending these transfer provisions to allow for administrative processing. Additionally, the tidelands permits and leases recently adopted by the City Council require commercial tidelands users to indemnify the City. For ease of use, it is proposed this indemnity obligation be placed within the Newport Beach Municipal Code ( "NBMC'). (Select only one) 1) Conduct first reading of Ordinance No. 2013 -15 amending NBMC Sections 17.35.020(F) and 17.60.060 to allow certain administrative transfers of encroaching tidelands permits and to require commercial tidelands users to defend and indemnify the City, and pass to a second reading on September 10, 2013; or 2) Conduct first reading of Ordinance No. 2013 -15 repealing NBMC Section 17.35.020(F) to allow the administrative transfer of all encroaching tidelands permits and amending NBMC Section 17.60.060 to require commercial tidelands users to defend and indemnify the City, and pass to a second reading on September 10, 2013; or Pone 42 of 57 Consideration of Ordinances Amending Newport Beach Municipal Code Sections 17.35.020(F) and 17.60.060 Relating to Piers that Encroach in Front of Adjacent Properties and Commercial Indemnity, Respectively August 13, 20.13 Page 2 3) Select neither option 1 or 2 and maintain the current process. FUNDING. REQUIREMENTS: There are no funding requirements associated with either recommendation DISCUSSION: Within .Newport Harbor, there are a small number of piers which encroach in front of adjacent abutting upland properties (i.e.; piers /floats encroach over the extension of their property lines into water area in front of a neighbor). These piers have existed for some time, and were allowed to encroach for various reasons at the time they were built. See examples in Exhibit A. NBMG Section 117.35:020(F) currently requires that a new permit be approved by the Harbor Commission for piers that encroach in front of adjacent upland property owned by others upon any of the following conditions; 1. Any change in type of existing use of the piers and floats; '2.1 Any change in type of existing use of the abutting upland property. owned by the permittee; 3. Any change of existing ownership of the abutting upland property owned by the permittee or upon the death of the permittee; 4, Any destruction of the pier and float in which over sixty (60) percent of the replacement value of the pier and float has been destroyed; In an effort to improve the pier permit transfer process staff has prepared two alternative ordinances for the City Council's consideration designed to address piers, that encroach In front of adjacent abutting upland properties. The first ordinance, attached as. Exhibit B, amends NBMC Section 17.35.020(F) to allow certain transfers between family members or between related entities to be processed administratively, without the need for Harbor Commission review. This ordinance also amends NBMC Section 17.60.060 to codify the indemnity obligations previously approved_ by the City Council for commercial tidelands permits and leases: The second ordinance, allacliedd as Exhibit C; repeals NBMC Section 17.35.020(F) in its entirety and allows for the administrative transfer of all pier permits. This ordinance also amends NBMC Section 17.60.060 to codify the indemnity obligations previodsly approved by the City Council for commercial tidelands permits and leases. There are no proposed indemnity obligations for non- commercial (e.g., residential) tidelands users under either ordinance. The redline amendments to the NBMC are shown in Exhibit D. 43 of 57 2 o 16 Consideration of Ordinances Amending Newport Beach Municipal Code Sections 17.357020(F) and 17,60.060 Relating to Piers that Encroach in'Ront of Adiacent Properties and Commercial Indemnity,- Respectively I I I I August 13, 2013 Page 8 These proposals originated through the City Council and were not taken to the Harbor Commi,Won for consideration. ENVIRONMENTAL REVIEW: Staff recommends the City Council find this action is not subject to the California Environmental Quality Act ( "CEQA!') pursuant to Sections 15060(c)(2) (the activity Will not result in a. direct or reasonably foreseeable indirect physical change in the environment) and 150 . 60(c)(3) th I e activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because It has no potential for resulting in physical change to the environment, directly or indirectly. NOTICING, This agenda item has been noticed according to the Brown Act (72 hours In advance of the meeting at which the City Council considers this item). Submitted by: AT AX lit �� vid�A. Ae PUbllcWorks Director Exhibits: A. Examples of Encroaching Commercial Piers B, Ordinance No. 2013-.J Amending Sections 17,35.020(F) and 17.60.060 C. Ordinance No. 2013-_15_ Repealing Section 17.35,020 Amending Section 1 1 TWO60 (F) and D. Redifne Version of Amended and Repealed NBMC Sections 44 of 57 3 of 16 Newport Beach GIS � n �U if I�4I00.0. \I , 4L 0 0 40 80 Feet 7 Exhibit A t � F q �Q Disclaimer: Every reasonable effort has been made to assure the accuracy of the data provided, however, The City of Newport Beach and its employees and agents disclaim any and all responsibility from or relating to any results obtained in Its use. Imagery: 2009 -2011 photos provided by Eagle Imaging www.eagteaerial.com 45 of 57 4 o 16 46 of 57 5 o 16 Exhibit B ORDINANCE NO, 2013 - AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, CALIFORNIA AMENDING SECTIONS 11.36.020(P) AND 17.6.0.060 OF THE NEWPORT BEACH MUNICIPAL CODE TO ALLOW CERTAIN ADMINISTRATIVE TRANSFERS OF TIDELANDS PERMITS AND TO REQUIRE COMMERCIAL TIDELANDS USERS TO DEFEND AND INDEMNIFY THE CITY OR NEWPORT BEACH WHEREAS, pursuant to the 19.78 Beacon Bay Bill, as amended, ( "Beacon Bay Bill") the City of Newport Beach ( "City ") acts on behalf of the State of California as the trustee of tidelands located within the City's limits; including Newport Harbor; WHEREAS, Section 1(b) of the Beacon Bay Bill and Title 17 of the Newport Beach Municipal Code (''NBMC ") allow the City to authorize third parties to use tidelands for commercial. and noncommercial purposes for a term not to exceed fifty (66) years; WHEREAS, the City allows persons to operate and maintain commercial and noncommercial piers upon the tidelands under an annually issued permit or tease; WHEREAS, a small .number of piers encroach In front of adjacent abutting upland property not controlled /owned by the permittee; WHEREAS, currently when a permit associated with a pier that encroaches in front of adjacent abutting uplands property is transferred the new permittee is required to seek a new permit from the Harbor Comrnission WHEREAS, the City desires to amend the NBMC to allow these types of permits to be transferred administratively, when the transfer is between family members or entities controlled /owned by the same person; and WHEREAS, the City desires to codify the indemnity obligation previously approved by the City Council for commercial tidelands permits and leases. NOW THEREFORE, the City Council of the City of Newport Beach ordains as follows: 47 of 57 6 o 16 Section 1: Subsection F(5) is added to Subsection 17,35.020(F) of the Newport Beach Municipal Code to read as follows: 5. This subsection shall not apply to the transfer of a permit between family members or between entities owned /controlled by the same person. Permits falling under this exception may be transferred administratively subject to approval by the City Manager or Harbor Resources Manager In accordance with Section 17,60.030(C)(4). Section 2: Subsection ''F" is added to Section 17.60.060 of the Newport Beach Municipal Code to read as follows: F. All persons that receive a commercial permit or lease from the City to use public trust lands shall as a condition of receiving the commercial permit or lease defend and indemnify the City. Unless different language is provided within a specific commercial permit or lease, the following Indemnity language shall be included, in substantially, the same form, within every commercial permit and lease: To the fullest extent permitted by law, permittee /lessee shall Indemnify, defend (with counsel approved by the City, which approval shall not be. unreasonably withheld) and hold harmless the City, its elected officials, officers, employees, agents, attorneys, volunteers and representatives from and against any and all claims, demands, obligations:, :damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses of every kind and nature whatsoever- (individually, a "Claim" or collectively, "Claims "), which may arise from or in any manner relate (directly or indirectly) to this permit /lease including, but not limited to, permittee's/lessee's occupancy and use, or permittee's /lessee's guests, invitees, sublessees,, or licensees occupancy, and use, of the public trust lands, or improvements including, but not limited to, any use Involving petroleum. based products, hazardous materials, 'hazardous waste and /or other hazardous substances as defined by City, County, State or Federal laws and regulations. The permittee'sJlessee's obligations in this indemnity shall not extend to the degree any Claim is proximately caused by the 2 48 of 57 7 o 16 sole negligence or willful misconduct of the City, subject to any immunities Which may apply to the City with respect to such Claims. This indemnification provision and any other indemnification provided elsewhere in this permit/lease shall survive the termination of this permit/lease and shall survive for the entire time that any third, party can make a Claim. Section 3.: The recitals provided in this ordinance are true and correct and are incorporated into the substantive portion of this ordinance, Section 4: If any section, subsection, sentence, clause or phrase of this ordinance is, for any reason, field to be invalid or unconstitutional, such decision shall not f f ce. ct the validity or cons itutionality 6 the remaining portions of this ordinance. Th City Council here I by: d . eclarOS I that it, Would I have passed this ordinance, and each section, subsection, clause or phrase hereof, irrespective of the fact that any one of more c I )re sections, subsections, sentences; clauses and phrases be declared unconstitutional. Section 5: 'The City, Council finds the approval of this ofdinance is not subject to the California Environmental Quality Act ("CEQN) pursuant to Sections 16060(c)(2) (the activity will not result in a direct of reasonably foreseeable indirect physical change in the environment) and 1i3060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. Alternatively, the City Council finds the approval of this ordinance is not a project under CEQA Regulation Section 116061(b)(3) because it has no potential for causing a significant effect on the environment Section 6: The Mayor shall sign and the..Cfty Clerk shall attest to,th6.passage of this ordinance. The City Clerk shall cause this ordinance, or a summary thereof, to be published pursuant to Charter Section 414. 3 49of57 8 of 16 This ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach, held on the _ day of , 2013, and adopted on the _ day of 2013, by the following vote, to wit: AYES, COUNCILMEMBERS NOES, COUNCILMEMBERS ABSENT COUNCILMEMBERS KEITH CURRY, MAYOR APPROVED AS TO FORM: THE CITY ATTORNEY'S OFFICE er AARON C. HARP, CITY ATTORNEY ATTEST: LEILANI I. BROWN, CITY CLERK 0 9 000f 57 Exhibit C ORDINANCE NO, 2013 - AN ORDINANCE. OF THE CITY COUNCIL OF THE CITY or NEWPORT BEACH, CALIFORNIA REPEALING SUBSECTION 17.35.020(F) ANC, AMENDING SECTION 17:60.060 OF THE NEWPORT BEACH MUNICIPAL CODE TO REQUIRE COMMERCIAL TIDELANDS USERS TO DEFEND AND INDEMNIFY THE CITY OF NEWPORT BEACH WHEREAS, pursuant to the 1678 Beacon Bay Bill, as amended, ( "Beacon Bay Bill ") the City of Newport Beach ( "City') acts on behalf of the State of California as the trustee of tidelands located within the City's iimits, Including Newport Harbor; WHEREAS, Section 1(b) of the Beacon Bay Bill and Title 17 of the Newport Beach Municipal. Code ( "NBMC ") allow the City to authorize third parties to use tidelands for commercial. and noncommercial purposes for a term not to exceed fifty (50) years; WHEREAS, the City allows persons to operate and maintain commercial and noncommercial piers upon the tidelands under an annually issued permit or lease; WHEREAS; a small number of piers encroach in front of adjacent abutting upland property not controlled /owned by the permittee; WHEREAS, currently when a permit associated with :a pier that encroaches in front of adjacent abutting uplands property is transferred the new permittee is required to seek anew permit from the Harbor Commissicin; WHEREAS, the City desires to repeal NBMC Subsection 17.35.020(F) to allow these types of permits to be transferred administratively, similar to the transfer of other tidelands permits; and WHEREAS, the City desires to codify the indemnity obligation previously approved by the City Council for commercial tidelands permits and leases. NOW THEREFORE, the City Council of the City of Newport Beach ordains as follows: Section 1: Subsection 17.35,020(F) of the Newport Beach Municipal Code is hereby repealed in itaentirety. 51 of 57 10 of 16 Section 2: Subsection "F" is added to Section 17.60.060 of the Newport Beach Municipal Code to read as follows'. F. All persons that receive a commercial permit or lease from the City to use public trust lands shall as a condition of receiving the commercial permit or lease defend and indemnify the City. Unless different language is provided Within a specific commercial permit or lease, the following Indemnity language shall be included, in substantially the same form, within every commercial permit and lease: To the fullest extent permitted by law, permittee/lesseesha'll indemnify, defend (with counsel approved by the City, which approval shall not be unreasonably withheld) and hold ha -mess the City,: its elected officials, officers, employees, agents, attorneys, volunteers and representatives from and against any and ail claims, demands; obligations, damages, actions, causes of action, suits, losses, judgments, fines,, penalties, liabilities, costs and expenses of every kind and nature whatsoever (individually, a "Claim" or collectively; "Claims "), which shay arise from or in any manner relate (directly or indirectly) to this permithease including, but not limited to, permittee's /lessee's occupancy and use, or permittee's /lessee's guests, invitees, sublessees, or licensees occupancy and use, of the public trust lands, or Improvements including, but not limited to, any use Involving petroleum based products, hazardous materials, hazardous waste and /or other hazardous substances as defined by City, County, State or Federal laws and. regulations. The permittee's /lessee "s obligations in this indemnity shall not extend to the degree any Claim is proximately caused by the sole negligence or willful misconduct of the City, subject to any immunities which may apply to the City with respect to such Claims. This indemnification provision and any other Indemnification provided elsewhere in this permit /lease shall survive the termination of this pen-nit/lease and shall survive for the entire time that any third party can make a Claim. 2 52 of 57 11 of 16 Section 3: The recitals provided in this ordinance are true and correct and are incorporated into the substantive portion of this ordinance. Section 4; If any section, subsection, sentence, clause or phrase of this ordinance is, for any reason, held to be invalid or unconstitutional, such decision shall not affect the .validity or constitutionality of the remaining portions of this ordinance. The City Council hereby declares that it would have passed this ordinance, and each section, subsection, clause or phrase. hereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses and phrases be. declared unconstitutional. Section 5; The City Council finds the approval of this ordinance is not subject to the California Environmental Quality Act ( °CEQA ") pursuant to Sections 15060(c)(2} (the activity will not result in a .direct or reasonably foreseeable indirect physical change in the environment) .and 150.60(c)(3) (the activity is not a project as defined in Section 15318} of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the. environment, directly or indirectly. Alternatively, the City Council finds the approval of this ordinance is not a project under CEQA Regulation Section 15061(b)(3) because it has no potential for causing a significant effect on the environment, Section 6: The Mayor shall sign and the City Clerk shall attest to the passage of this ordinance. The City Clerk shall cause this ordinance, or a surnmary thereof, to be published pursuant to Charter Section .414,. 53 of 57 12 of 16 This ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach, held on the _ day of , 2013, and adopted on the _ day of 2013, by the following vote, to wit: AYES, COUNCILMEMBERS NOES, COUNCILMEMBERS ABSENT COUNCILMEMBERS KEITH CURRY, MAYOR APPROVED AS TO FORM: THE CITY ATTORNEY'S OFFICE AARON C. HARP, CITY ATTORNEY ATTEST: LEILANI I. BROWN, CITY CLERK td 13 of 16 54 of 57 Exhibit D Redline Versions of Amended NBMC Section 17.35.020(F) and 17.60 060 Amendment of NBMC Section 17.35.020(F) Allowing Intra- Family Transfers F. Encroaching Piers and Floats. In areas where existing piers and floats encroach in front of abutting upland property owned by others, a new permit approved by the Harbor Commission shall be required upon: 1. Any change in type of existing use of the piers and floats; 2. Any change in type of existing use of the abutting upland property owned by the permittee; 3. Any change of existing ownership of the abutting upland property owned by the permittee or upon the death of the permittee; 4. Any destruction of the pier and float in which over sixty (60) percent of the replacement value of the pier and float has been destroyed. 5. This subsection shall not apply to the transfer of a permit between family members or between entities owned /controlled by the same person Permits falling under this exception may be transferred administratively subiect to approval by the City Manager or Harbor Resources Manager in accordance with Section 17.60.030(C)(41 Before the Harbor Commission acts on the new permit, the owner of the abutting upland property, in front of which the harbor facility encroaches, shall be notified in writing of the meeting in which the new permit will be considered. Repeal of NBMC Section 97.35.020(F) L S G L S' 4 Any - slaange ire- type of ex+st+ng- use e# ifie piers aFld Heats 55 of 57 14 of 16 Amendment of NBMC Section 17.60.060 to Clarify Indemnity Obligations 17.60.060 Public Trust Lands. The following restrictions shall apply to public trust lands under either a permit or a lease: A. Leases /Permits. In the event public trust lands are used by an entity other than the City, then that entity shall enter into a lease or permit with the City. Such leases shall provide lessees with a leasehold interest in the property for a period of at least five years, not to exceed a period of time as limited by the City Charter or applicable State law. Such permits shall provide permittees with an interest in the property for a period of twelve (12) months or less. B. Land Use. Leases and permits shall be for uses consistent with the public trust and Section 17.05.080. Preference shall be given to coastal- dependent uses. C. Public Access. Public access shall be provided in a manner consistent with applicable law. D. Revenue. Rent under this section shall be based upon fair market value, as determined by the City Council. Such determination shall be based, in part, upon the findings of a City - selected appraiser. 56 of 57 15 of 16 E. Commercial uses provided under this Title 17 are exempt from any provision requiring involvement of the owner or long -term lessee of an abutting upland property. F. All persons that receive a commercial Permit or lease from the City to use public same form, within every commercial permit and lease: To the fullest extent permitted by law permittee /lessee shall indemnify, defend (with rnnncol onnrn..e.l 6.. i6.. n.a.. ...6._1 _____.. -. .. . . - -.... -.• ..,w... V VGI I IqI lUJ oblations, damages actions causes of action suits losses iudgments fines _.. -._. relate (directly or indirectly) to this permit/lease including IllgllllGl but not limited to permittee s /lessees occupancy and use or Permittee's /lessee's guests invitees sublessees, or licensees occupancy and use of the public trust lands or improvements I Llril 6.4 ♦ 1. ,♦ sole negligence or willful misconduct of the City, subject to any immunities which may r L1­- 57 of 57 16 of 16