HomeMy WebLinkAbout03 - Indemnity for Piers�gwapar
CITY OF
NEWPORT BEACH
City Council Staff Report
Agenda Item No. 3
October 8, 2013
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Public Works Department
David A. Webb, Public Works Director
949 - 644 -3330, dawebb @newportbeachca.gov
PREPARED BY: Chris Miller, Harbor Resources Manager
949 - 644 -3043, cmiller @newportbeachca.gov
APPROVED:
TITLE: Adoption of Ordinance No. 2013 -15 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
ABSTRACT:
Adoption of Ordinance No. 2013 -15 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.
RECOMMENDATION:
Conduct a second reading and adopt Ordinance No. 2013 -15 amending Section
17.60.060 which requires commercial tidelands users to defend and indemnify the City.
FUNDING REQUIREMENT:
There is no funding requirement associated with this agenda item.
DISCUSSION:
At its meeting of September 24, 2013, the City Council elected to not change the
existing process for transferring piers that encroach in front of a neighbor's
property. These types of transfers will continue to be reviewed by the Harbor
Commission pursuant to the existing provisions in the Newport Beach Municipal Code.
The City Council did approve the first reading of the proposed amendment to the
Municipal Code relating to commercial pier lessees or permittees indemnifying the City
as described in Attachment A. Ordinance No. 2013 -15 amends Newport Beach
Municipal Code Section 17.60.060 to include language requiring commercial tidelands
Page 1 of 63
Adoption of Ordinance No. 2013 -15 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
October 08, 2013
Page 2
users to defend and indemnify the City of Newport Beach through commercial pier
permits and leases.
Attachment B is a copy of the staff report considered by the City Council at its
September 24, 2013 meeting.
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 Section 17.60.060
B. Staff report from September 24, 2013
Page 2 of 63
Attachment A
ORDINANCE NO. 2013 -15
AN ORDINANCE OF THE CITY COUNCIL OF
THE CITY OF NEWPORT BEACH,
CALIFORNIA 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 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;
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; 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 "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,
Page 3 of 63
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.
Section 2: The recitals provided in this ordinance are true and correct and are
incorporated into the substantive portion of this ordinance.
Section 3: 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.
2
Page 4 of 63
Section 4: The City Council finds the introduction and adoption 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 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.
I //1
///
3
Page 5 of 63
Section 5: 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 24`" day of September, 2013, and adopted on the 8th day
of October, 2013, by the following vote, to wit:
AYES, COUNCILMEMBERS
NOES, COUNCILMEMBERS
ABSENT COUNCILMEMBERS
KEITH D. CURRY, MAYOR
APPROVED AS TO FORM:
THE CI -y' TTORNEY'S OFFICE
AARON C. HARP, CITY ATTORNEY
ATTEST:
LEILANI I. BROWN, CITY CLERK
0
Page 6 of 63
Attachment B
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
949- 644 -3043, cmiller @newportbeachea.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.
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Page 7 of 63
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
Page 8 of 63
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
Page 9 of 63
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:
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Page 10 of 63
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 6 of 57
Page 11 of 63
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
Page 12 of 63
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
Page 13 of 63
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
APPROVED AS TO FORM:
THE �CITY ATTORNEY'S OFFICE
AARON C. HARP, CIlAA' ATTORNEY
ATTEST:
LEILANI I. BROWN, CITY CLERK
5
8 of 57
Page 14 of 63
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 existinq 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 Familv 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
Page 15 of 63
3. At least ten (10) calendar days Bbefore 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 m,,,eet:q —aat 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
Page 16 of 63
permit or lease in front of abutting upland property not owned or leased by the person
applvina 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, 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 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
Page 17 of 63
ATTACHMENT C
= CITY OF
NEWPORT BEACH
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
.gov
APPROVED:
TITLE: 6nsidbf tIon 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 of 26
12 of 57
Page 18 of 63
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
2 013 of 57
Page 19 of 63
Exhibit A
ORDINANCE N0.2013 - 15
AN 012 DIN ANICE OF THE CITY COUNCIL OF
THE CITY OF NEWPORT BEACH,
CALIFORNIA AMENDING SECTIONS
17.85:020(F) AND. v-.6.0.900 OF THE
NEWPORT BEACH. MUNICIPAL CODE TO
ALLOW CERTAIN AWINISTRATIVE
TRANSFERS. OF'TIDELANDS P. ERMIT$ AND
TO REQUIRE COMMERCIAL, TIDELANDS
USERS. TO DEFEND AND INDEMNIFY: THE
CITY 6r :NEWPORT BEACH
WHEREAS, pursuant to the :.1978 Beacon Bay :Bill, as .amended, ( "Beacon Bay
Bill') the City of .Newport Beach ( "City) acts. on behatf of the State of Callfo n, 'as the
trustee. of tidelands located within file City's limits, including Newport Harbor; .
WHEREAS, Section 1(b) of the Beacon Bay. Bill and Title 17' of the N.ewpoit
Beach :M Uhl cip..gI Code . { "NBMCk) . allow the City to authorize third :parites to use
tidelands toe commercial: and ,noncommercal :purposes for a, term not to :exceed fifty (50)'
.
Years!.
WHEREAS, the 'City allows ..persons ; to operate and :maintain commercial `and
nancorrmerci.al:niers upon . the tidelands under an annually issued perms of lease;
WHE Ill _AS, a small number of ,piers encroach m front of adjacent abutting
upland property not coiitrol(etllowned by the;nerm(ttee;
WHEREAS, currently when apermitassociated with:6 pler that:eneroacles:iq
front of adjacent abutting uplands property s..transto0d the new perm tee is required
to seek :a new permit from the. Harbor Commission;
UVHEREAS, the. City desires 'fo amend the NBMC to allow these typeslof permits
to be transferred administratively; when. thE, transfer is kietween family mernkers or
entities controlled /owned. by the sal e person; and
WHEREAS, the City desires to . codify the indemnity obligation .previously
approved by the City Council far cornrnercial.Welands. permits and ceases...
NOW THEREFORE, the City Councii:of the City af:Newport Beach ordain=s as
follows,`
Section 1: Subsection 17.35.020(F) of the Newpoft 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 ple.r and float in which over sixty (60)
percent of the replac.ernent 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 15y others, a permit shall be
transferred; to the extent permitted by this Subsection, or a new
permit emnit obtained upon:
a. Any change of the existing ownership of the abutting upland
property owned by the permittee;
b. Any change of thQ.exI sting ownership of any :entity that owns
the abutting upland property; or
6; The death of the permittee
in accordance with Subsection 17.60.031D(.C)(4),- the City Manage I r
or Harbor . Resources Man.ager.shall have authority to process an
administrative transfer of a permit pursuant to Subsections 2(a),(b)
and (c) between Immediate Faimily Members or between :entities
ties
wholly owned1contr011ed by the he saiTio person, . F5,rpurpDses of this
s
Subsection, "Immediate Family Members" shall r,nean, the
permItto%e'.s grandfather, grandmother, father, mother, her, brother,
sister, wfe, husband, or child. The. Harbor Commission Shall
processall other permits required by this Subsection.
3. At least ten (10) calendar days before the I-lairboT
Commission, City Manager or Harbor Resources Manager acts on
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Page 21 of 63
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,
16 of 57
Page 22 of 63
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,
hazallous waste and/or other hazardous substances as defined
by City, County, State or Federal laws and regulations. The
pen'InitteeWlessee's obligations in this; indemnity shall not extend to
the degree. any Claim. is. -proximately caused by the sole negligence
or willful rhisconduct of the City, subject to any immunities which
may apply to the OW With respect to such Claims. This
indemnification, provision and any other indemnification provided
elsewhere in an indMdual perrnitflezise shall survive the termination
Of said P6mFilt/166S6 and shall survive. for the entire time that any
third party can make a Claim.
This indemnity Obligation shall apply in I dependent 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, dause 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 C a
odholl 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 approval of this ordinance is not subject to
the California Environmental Quality Act ("CLOX),pursuant to Sections 16.060(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
15M) 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(lo)(3) because it has no potential for
causing a significant effect on the environment,
Ell
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Page 23 of 63
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
C0(
AARON C. HARP, CITY ATTORNEY
ATTEST:
LEILANI I. BROWN, CITY CLERK
5
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Page 24 of 63
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:
I-a. 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
- ee-
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, 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
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Page 25 of 63
"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 Bbefore the Harbor Commission, City Manager or
Harbor Resources Manager acts on athe nev., 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 aaeeting —iaat which the aew—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
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.
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Page 26 of 63
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.
F. All persons that receive a commercial permit/lease, whether it is a new Permit/lease
or a transferred permittlease, 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, iudgments, 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 Permittlease including,
but not limited to, the issuance of any permit/lease, the transfer of any permit/lease, the
entry into any permittlease, permittee's /lessee's occupancy or use, or
permittee's /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 /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, sublect 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 permittlease 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.
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Page 27 of 63
�gWVpRT
= CITY OF
w
NEWPORT B EA b
C�(IFOP��p City Council Staff Report
Exhibit C
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, dawebl)@newportbeaclica.gov
PREPARED BY: Chris Miller, Harbor Resources Manager
APPROVED:Q
TITLE: Consideration of Ordi \)nces 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
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Page 28 of 63
Consideration of Ordinances Amending Newport Beach Municipal Code Sections
17.35,020 fl and 17.60.060 Relating to Piers that Encroach oach in Front I f A I
Properties and Commercial Indemnity, Respectively
August 13,2013
Page 2
3) Select neither option I 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 land propertles.(Le,, .piers /floats encroach over the extension of
their property lines into Water area in front of a neighbor), Those piers have existed for
some time, and were. allowed to :encroach for various ! I reasons at the time. they were
built. See examples in Exhibit A.
NBMC Section 17,85.020(F). currently re.ouires that a new permit be approved by the
Harbor Commission for piers that encroach in front of adjacent ent upland property owned
by others upon any of the-fopowing 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 bAstIng ownership of the abutting upland property, owned by the
permitted; or upon the death of theperi-nittee;
4. Any destruction of the pier and float in which over sixty (00) percent of the
replacement Value of the bier and float haa boon destroyed.
In an effort to improve the pier permit transfer process staff has, prepared two alteirriative
ordinances for tho.QIty 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 17.36.020(F) to allow certain transfers between family
members or between related entities to be processed administratively, Without the need
for Harbor Commission review; This is ordinance also arnends NBMC Section 17.60,066
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.a5.020fl 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 previously
approved by the City Council for commercial tidelands permits and leases. There are
no proposed Indemnity obligations for iron- commercial (&,g., residential) tidelands users
Linder either ordinance, The redline amendments to the NBMC are shown in Exhibit D.
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Page 29 of 63
Consideration of Ordinances Amending Newport Beach M
unicipalCode Sections
I 735,0.20(F) and 47.60.060 Relating - to Piers that Encroach in Front of Adjacent
Properties and Commercial I , ridemnity, Respectively
August 13, 2013
Page 3
These proposals originated through the City Council and were not taken to the Harbor
Commission for consideration,
ENVIRONMENTAL. REVIEW:
Staff rocommendq the City Council find this action is not subject to the California
Environmental Quality Act ("QEQA") pursuant to Sections 15000(c)(2) (the activity will
not result in a direct, or reasonably foreseeable indirect physical change in the
environment) and 1 , 6060(c)(8) (the activity is not 0 project as defined Section 1 6378)
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:
tual
Dhvid A. —115b
Public Works Director
Exhibits: A. Examples of Encroaching Corn me.rcial Piers
B. Ordinance No. 2013-_15__ Amending Sections 17.35;020(F) and
17.60,060
C. Ordinance No. 2013-_lr2_ Repealing Section 1735,020(F) and
Amending Section 17.60.060
D, Redline Version of Amended and Repealed NBMC Sections
24 of 57
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Page 30 of 63
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Exhibit A
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 responsibitity, from or relating to
any results obtained in Its use.
Imagery: 2009.2011 pholos provided by Eagle
Imaging www.eagteaedal.00m
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Page 31 of 63
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Disclaimer: Every reasonable effort has been made to assure the
accuracy of the data provided, however, The City of
O
Newport Beach and Its employees and agents
disclaim any and alt responsibility from or relating to
any results obtained in Its use
100 200
D
Imagery: 2009.2011 photos provided by Eagle
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26 of 57
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Page 32 of 63
Exhibit B
ORDINANCE NQ. 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 O.F.NEWJPORT BEACH
WHEREAS, pursuant to the he 1978 Beacon eacon Bay Bill, as amended, "Beacon Bay,
Bill") the City of Newport Beach ('.City'.) acts on behalf, of the State of.Qalifornia as the
trustee of tidelands located within the City's limits, Including Newport Harbor;
WHEREAS, Section 1(b) of the Be0opn Bay Bill and Title 17 of the Newport
Beach Municipal Code ("NBIVIO") allow, the City to authorize third pairties 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 on annually issued permit or lease;
WHEREAS, a small number of plers encroach in front of adjacent abutting
uplandproporly not controlled/owned by the permittee;
WHEREAS, currently when a permits986clated with a pier that encroaches in
front of adjacent abutting uplands property is transferred the now Permittee Is required
to seek a new permit fronn the Harbor Commission;
WHEREAS, the City desires to amend the NBIVIC 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 cod , ify 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:
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Page 33 of 63
Section 1: Subsection F(5) is added to Subsection, 17.35.020iF),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 .hy the same person. Permits failing under
this exception may be transferred administratively subject to
approval proval by the City Manager or.Harbor Resources Manager
I I n 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.t.o 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
].hd.erhnlfV the City. Unless different la'nQuage is provided
within a specific commercial permit or le,9se, the following
indemnity Wriguage shall be Included, in substantially the
same form, within every commercial, permit and lease"
To the fullest extent permitted by.law, permitte6/1'essee shall
indemnify, defend (with counsel approved by the City, which
approval shall not. be unreasonably withheld) and hold
harmloss 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, lossesi Judgments, fines,
penalties, liabilities, costs and expenses of every kind and
nature Whatsoever (individually, a "ClaliW or collectively,
which may arise frorn or in any manner relate
(directly or indirectly) to this permit/lease including, but not
limi.ted . 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
perm)ttee's/lessee's obligations in this indemnity shall not
extend to the degree any Claim is proximately caused by the
2
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Page 34 of 63
sole negligence or Willful. miscond uct, of the City, subject to
any immunities which mazy apply to the City with respect to
such Claims. This Inderrinif i6a,tiori provision and any other
indeinnification provided elsewhere in this permit /lease shall
survive the termination Of (Ills permit/lease and shall survive
for the entire time that any third paiiy 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 reasorl, 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 thi I s ordinancO, and each
section,. subsection, claus:0 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 (TEQA') purwant to Sections 16060(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 approval of this ordinance is not a
project under CEQA Regulation Section 1.5061(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 C@UGe this ordinance, or a summary mmary thereof, to be
published pursuant to Charter Section 414.
3
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Page 35 of 63
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
iA '-V�r I
AARON C. HARP, CITY ATTORNEY
ATTEST:
LEILANI I. BROWN, CITY CLERK
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Exhibit 0
ORDINANCE NO.
AN ORDINANCE OF THE. CITY COUNCIL OF
THE CITY OF NEWPORT BEACH,
CALIFORNIA REPEALING SUBSECTION
1736,020(F) AND AMENDING SECTION
11I.60..066 OF THE NEWPORT BEACH
MUNICIPAL CODE TO REQUIRE,
COMMERCIAL TIDELANDS USERS TO
DEFEND AND INDEMNIFY THE, CITY OF
NEWPORT BEACH
WHEREAS, pursuant to the 1078 Beacon Bay 8111, as amended; ("Bbacon Bay
Bill") the City of Newport Beach ( "City") acts on beh,ailf -of the State: of California as the
trustee of tidelands located vVithin.the City's limits, including Newport Harbor;
WHEREAS, 8ection 1(b) of the. Beacon Bay 0111 and Title 17 of the Newport
.d e
Beach Municipal Co . ("NBMIU) allow the City to authorize third parties to use
tidelands for commercial and noncommercial purposes fora term not to.exceed fifty (50)
years;
WHEREAS, the City allows persons to operate and maintain commercial and
noncommercial piers upon the tidelands underan 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, CLIfr6rifly When a ppirrnit associated With a pier that encroaches in
front of adjacent abutting uplands property is transferred the new oermittee is required
to seek a new permit from the Harbor Cornm , Ission;
WHEREAS, the City desires to repeal N$MC Subsection 1736.020(17) 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 COLIII611 for commercial tidelands permits and leases;
ses.
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 Its entirety,
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Section 2: Subsection "F" is added to Section 17.60.060 of the Newport Beach
Municipal Code to read as follows:
F. All persons Ihat 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 spec ific. commercial permit or lease, the following
indemnity language shall be included; in substantially the
same form, within every commercial permitand.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, ifs elected officials, officers, employees,
agents, attorneys, volunteers and representatives from and
against any and all: claims, demands, obligations, damages,
actions, causes of action, suits,. Ioss.es, judgments, fln ,s,
penalties; liabilities; 'costs and expenses of every kind and
nature whatsoever' (individually; a "Claim" or collectively;
"Claims "% which may.anse 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, iiwitees,. 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
Clty; 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 permit /lease and shall survive
for the entire time that any third party can make a Claim.
2
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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, sribseetion, 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 ( "CEQN) pursuant to Sections 16060(c)(2) (the
activity will not result in a direct or reasonably foreseeable indirect physical change in
the environment) and 15060(c)(3) .(the 8 tivlty is not a project as defined in Section
15378) 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 indirectly. Alternatively, the City Council finds the approval of this ordinance is not a
project under C.EQA Regulation Section '15061(b)(3) because it has no potential for
causing a significant effect of the environment.
Section ti: The.Mayor shall sign and the 0ity.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.
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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 OFFICE
�0 a.')
AARON C. HARP, CITY ATTORNEY
ATTEST:
LEILANI I. BROWN, CITY CLERK
4
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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 subject to approval
by the City Manager or Harbor Resources Manager in accordance with Section
17.60.030(0)(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--- €nereaehing-Riers- and- Faoats -fn areas- where- exist+ng4ers- andfleat "nsreach4n
front-of abutting upland pfepe # yowlzed -iy- others a flew -permit- approve"y-the- Harter
Commission shall- be- regtiireeWperi;
a-- Anyehange in- type -of existing use.ef- the- piemand floats;
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Page 41 of 63
2. - - Any - shaege -in- type -ef- existing -use- ef- theabutting- uptand- property -ewned-by
the- peffnittee;
3. Any - change- of- ex+Shn"wnershtp- V4e-ab6it R"piand- Weperty awned -by
the permittee ewpen-thet-ieath -ef the per-rnittee-,
4.— Any- dest+usHen- e#- ttie�ierand- #leaf- in- wMlsh- ever - sixty-- {�9}- persenF of -flue
reptasemenf value -e#- the - pier - and- float-has-been destfeyed.
Bef ere4he- Harbof- Gemmissionaete -en -tire new- permit- theawner ef-the- abutting -- upland
pfeperty- in- frent- of -whiG the- hafbef-fasiRy- ensfeashes, shall- be-- net+fied- in-wfiting -ot
therneeting- in- whieh- the- newlpermit- 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.
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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.
vermittee'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
termination of this permit/lease and shall survive for the entire time that any third party
can make a Claim.
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IiA RYS..CARMACx
ATTORNEY AT LAW t�} 3 ..
474 E. 17th Street, Suite 201
Costa Mesa, Caftmla 92627
Tat 649-6v-5548
Fax: 949. 842 =1598
E -mail: ficar muck @pacbell;ttei.
August 15, 2013
Newport Beach City. Council
City ofNewporf )3eacli
100 Civic:Cemer Drivo
Newport Beach; CA .9.2.660
Re:. Newpor7. Peach Gt ty.. CouncitRegttlarMeeting�August13 ,2013
Current.Buslness Agenda Item No, •20
Honorable. Council Mdmbers:
i represent Sohn Vallely, owner ofthe property at 508 South Bay Front, Balbga .
Islapd, I have:tilso beer(. aresrctent of Newport Beach for almost 40. years Mr: Vallely's
property is o ne ofthe pmperhes ide.d6fred by City staff as affected by the proposed.
amendments tb NBMCSecfrona I735 .020 {F):and 17:60,060 Item No 2t). on the
Agenda. for August 13, 2013.
It as my understanding these proposed amendments ootne from the City
Attorney s offi and have beeri under discussion for seine time . However,
probalsly fair to say the Vallely doek suuati6hJziay have protnpted. rite C ttyAttomey's.
office.to propose the amendments at thra tune. My.understending:is that the Vallel y. dock
presents a srtti ition;not ericountered.prevrausly.by the City's cuiretit HarborResoiiroe
Department, lrut.one that'wi1I a encoumered'for other properties rri;the future.
Inrttal.iy, it is iniport.wt. to understand w. a.i- r. Vailely asked the door.
Resaufces Depaitinent to. do Ms Vallely's parents awned and resided at 508. South Bay
Front for over 75 years Foliowisg:his mother's: death in 2012, and the adrnirlistradoiu of .
his mother's tins( that held title to 508 South Bay Front,: Mr ValIely's trust tiecalne the
owner of the property iVr: Vallely'subsequeutly appliedfar a transfer of the. commercial
pier permit, held: t n the cane of his pizenfs' ttifst, to his: trust There is.nothng more to
the application — it rs aitripiy a requesf to change the narrie.on th8.commercial.pier permit
following the parent /child transfer.. .
Citing curtest N]3MC Section..17 35:020(F)(3), the Harbor Resource Manager
took the position that W Validly. piust, go through the process ofi applying fora new
eonunefdal pier. permit: Mr. Vallely disputes tl is interpretation and is prepared to file a
writ inSuperior Court to compel the trans(m :Among other reasons, Mr. 'Vallely disputes
rho decision because Section 17.60.060 {F} p empty commercial piers from the provisions
of ScO on 1735.020(F)(3).
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Newport Beaoh City Council
City of Newport Beach
August 15, 2013
Page 2 of.4
At Tuesday night's council meeting; several speakers during public comment
grossly inisrepreaented the status :of the Vallely dock matter. In watching 'the meeting on
television, it appeared to me some Members might.have been influenced by these
misrepresentations, or concerned about the proposed amendments based on these
misrepresentatibns.. For that reason, I feel it is necessary -to correct the misrepresentations.
so Members kiavo the correct information.
First, contrary to the repeated representations of the adjacent property owner at
S 10 south Bay Front, and-her attomey, the Vallely dock is Api an illegal structure or use.
The attomey should know better than to make sueh an incorrect representation to the
Council, Councilman Selich corrected the speakers when he stated that the dock was not
illegal; but rather a "legal iron- conformm use."
A "legal ionconfornting use" is "a lawful use oxisting on the effective date of the
zoning restriction and continuing since that time fn nonconformance to the drdinance."
(City of Los Angeles v. Gag# (1954 127 Ca1.App,24 442,:463.) Aproperty owner has a.
vested right to continue lawful uses of property and is not required to obtain a special use
permit ut order.to continue lawful preexisting uses. (City of Ukiah v, County of
.Mendaeino (1987) 196 Cal,App.3d 47, S6.) Transfer of title does not affect the right.to
continue a lawful nonconforming use which runs with the land. (Hanson Brothers
Enterprises, Inc. v. Board of Supervisors oftV`evatla County (1996).12 Cal.4" 533; 540.)
508 South Bay )Front was purchased. by Roland Vallely, John Vallely's father, in
1935: The property had an existing pier. On April 27.j.19 & Rbliiid Vallely was granted
�'SAT�r A4anortenrnt Rarmithv tla'drinv l'nrnii ti�iXnrriiivare to rrinctnsnt t.xin ixrnerilnn
the extended property
a boat rental andfoz boat slip rent,
property taxes on this dock; speci
their property, for over 75 years.
According to City staff re;
or harbor polioies when Roland
1938. When policies were adopt(
"encroached" across a neighbor's
Harbor Penult Policies.) The Val
permits rmd existing policies for f
iacent property at 5.10 South Bay Front. OnJuly 18;
cil granted Mr. Vallely's request to install an
approval of the owner of 510 South Bay. -Front and
istructedbave been used and maintained in the same,
years, Trio Vallely family has operated the mi o.na as
For the enti re 75 years. The Vallely family has paid:
;ally listed by the tax assessor as an improvement to
rts in 1965 and 1966, there were no City pier permits
lely constructed the additions to the pier m* 1936 and
it was legal to construct comnetcialpiers that
(tended property line. (Section i -B of the, former
ly dock was a 1aw£ut use in compliance with original
lost thirty years. On Tanuary9,1967, the City
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Newport Beach City Council
City of:Newport Beach
August] 5; 2013
Page 3.o f4
authorized the addition. of Section 29 to the then Harbor Permit Policies. This Section 29
periai aed to the: elimination of encroaching. pier and float facilities. At that time, the
Vallely commercial dock becairie a "legal non- conforiing use, and:remains a "legal
non- conforming use" to this day. The dock is not an illegal structure or use. The
language of prior:Section 29 carries forward almost verbatim in today's Section
17;3s.azo�F�.
Second, contrary to what several speakers represented to the Council;_ Mr. Vallely
has not applied lot a 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 familyhas held a business license for their commercial use for almost 75
years — first in the name of 2toland Vallely, and since 1972: in the name of the Vallely
Family Trust. The business licensc:is renewed annually bypayirg the license .fee. John
Vallely recently renevveii the license as required by paying "the annual fee, acid, since his
trust is now the propert y owner, put the license m . b
is trust's name. Thercisno
application for a new license. Nothing has changed with the respect to the dock or its
use. The representations that Mr: Vallely is doing something that changes the parking
situation as it has always existed are:false. The dock space is exclusively leased to boat
owners, just as it has been for over the last 30 years,
Finally, let me provide some history on the adjacent property- 510 South Bay
Front. I feel it is important 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
eommercial use. It borders Opal Street with-the City's.iiidr extending from the end of
Opal Street. An aerial photograph taken in 1952 shows a sandwich strop stand at 510, the:
Vallely dock, commercial businesses, a gas dock, etc., along the block. The commercial
block is currently zoned Mix Use Water Related, which allows commercial uses.
Vallel_y's commercial use is an approved use.
According to John Vallely, who grew up at 508 next door, soinetrme.in.ihe 1970,'5.
the owner of 510,.applied for and down -zoned the 510 property i i .order to build a duplex
on the property. In other words, a prior owner of 510, for that owner's own econorme
benefit, created a situation wherein 510 became 'alone, residontial +zoned property at the
end of the commercial -zoned block. There are to this day "encroaching" commercial
docks on the entire 50,0 block, and on the 400 block on the other side of the ferry at Agate
Street; This situation was visible to anyone who purohased 5IO,,yetthe currant owner 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 be allowed to- tragsfer their
commercial dock permit to afamily member or related entity without applying fora new
permit:
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Newport Beach City Council
City of Newport Beach
August 15,.2013
Page .4 ok
.I've already indicated the prior property owner at 510.gave his approval to
construct the "encroaching" dock m.1938, approval that was subs equentlyput in a
written, notarized letter: The current :owner of 510 doesn't Nvant to recognize Vallely's
vested right to maintain the existing dock, aright that vested between the property
owners when her predecessor at S 10.approyed the construction of the dock and Vallely
paid for the construction. This vested right runs with the land and is transferable to
subsequent:owners.
Instead, the current: owner at 510 is trying to accomplish her goal, the removal of
the encroaching dock, by urging the City to rcquire Valiwy to apply fora new permit for
the dock — one that she will strenuously oppose: Vallely's'position is that his right to the
ourrentpemait is also a vested right between Vallely and the City, that the current pertnit
is transferable as a matter of law, and that the, City may not requite Vallely
apply fora
new permit. Members may recognize this position as asserting what is coni brily .
referred to as "grandfathere& rights; Vailely is assertic g: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 encroaching dock. She
bought the property with full knowledge of the encroachment, and had every right to
investigate Vallely's vested right to maiutain the dock pursuant to the prior owner's
perriission to buildit. She threatened legal action through her same attorneynine years
ago, but has done nothing Because she knows :she has no remedy at law, blow; she is
trying to reach her goal by opposing amendments to the that that would treat
Vallely like. everyone else in the harbor amendments that should avoid legal action
between Vallely and'tbe_ City:
T would lie more than happy to discuss the Vallcly dock situation with any
Member.
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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 Ordi Ices 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
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Page 48 of 63
Consideration of Ordinances Amending Newport Beach Municipal Code Sections
17.35.020.(F) and 11.60.060 Relating to Piers.that Encroach in Front of Adjacent
Properties and Commercial Indemnity, Respectively
August 13, 2013
Page 2
3) Select neither option I or 2 and maintain the current process.
FUNDING.REQUIREMENTS:
There are no funding requirements associated with either recami-nandation
DISCUSSION:
Within Newport Harbor, there are a small number of piers which encroach in front of
adjacent abutting upland properties (ie., piers/float"F encroach over the extension of
their property lines into water er area in front of a neighbor). These plots have existed for
some tirrie, and were. allowed to encroach for various reasons at the time they were
built. See examples in Exhibit A.
NBMC Section 17. 36;020(P) currently requires that a new permit be approved by the
Harbor Commission for pier's that encroach in front of adjacont upland property owned
by others upon any of the following conditions.,
1. Any change in type of existing LISR 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
perrnittee or upon the death ofthe permittee;
4; Any destruction of the plot and floa in which over sixty (60) percent of the
I t y
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 plots , that oncro'aGh
in iront,of adjacent t abutting upland properties. The first ordinance, attached as Exhibit
B, amends NBMC Section 17,35.020(F) to 611QW certain transfers between family
members or between related entities. to �bo. processed administratively, I tratively, 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 Ci repeals NBMC Section 17.35,020(F) in its
entirety and allows for the administrative transfer of allpier. permits. This ordinance also
amends NBMC Section 17.60.060 to codify the indemnity obligations previously
approved by the City Council for commercial fidelandg 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.
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Page 49 of 63
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 Adlacent
Properties and Commercial Indemnity,. Respectively I I I
August 13, 2013
�Page 3
These proposals originated through the City Council and were not taken to the Harbor
Commission for consideration,
ENVIRONMENTAL REVIEW:
Staff recommends the City Council find this action is not subject, to the California
Environmental Quality Act ("CEQK') pursuant to Sections 1.5060(c)(2) (the activity Will
not result in a. direct or reasonably foreseeable indirect physical change in the
environment) and. 1 W60(q)N. (the activity is not a project . a . s defined efined in Section 15378)
of the CEQA Guidelines, California Code of Regulations, Title 14., Chapter 3, because It
has no potential for resulting i in physical change to the environment, directly or
indirectly.
NOTICINOc
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:
A
Dbvid A. VX1515
Public Works Director
Exhibits: A. Examples of Encroaching Commercial Piers
B, Ordinance. No. 2013 -a1 Amending Sections 17,35.020(F) and
17.60.060
C. Ordinance No. 2013- ij
_ 5 Repealing Section 17.35,020(F) and
Amending Section 17.60.060
D. Redline Version of Amended and Repealed NBMC Sections
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Page 50 of 63
Exhibit A
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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
s any results obtained In its use.
0 40 80
'- Imagery: 2009 -2011 photos provided by Eagle
Feel Imaging w.+.eagleaedal.com
yn2nm
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Page 51 of 63
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Beach
GIS
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Page 52 of 63
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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
100
200
Imagery:
2009 -2011 photos provided by Eagle
Feet
Imaging www.eagleaedal.com
46 of 57
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Page 52 of 63
Exhibit B
ORDINANCE NO. 2013 -
AN ORDINANCE OF THE CITY COUNCIL OF
THE CITY OF NEWPORT BEACH,
CALIFORNIA AME N. . . DING SE I
17.35.0120(F I 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 Beaton Bay Bill,.as amended, ("Beacon Bay
Bill") the 01 , ty of Newport Beach on.behalf of the State of Califomia as the
trustee offidelands. located within the Cfty°s limits, including Newport Harbor;
WHEREAS, Section 1(b) of the Beacon Bay Bill and T"itle. 17 of the Newport
Beach Municipal Code (''NBMG') allow the City to authorize third parties to use
tidelands for commerci . al.and noncommercial purposes for a term notto exceed fifty (66)
years;
WHEREAS, the. City allows persons to operate and maintain commercial and
noncommercial piers upon the tidelands under an annually; ssued permit or lease.;
WHEREAS, a small number of piers encroach In front of adjacent abutting
upland property not controlled/owned by f he permittee;
WHEREAS, currently when 6 permit associated with a pier that encroaches in
front of adjacent abutting uplands properl:y is transferred the new per.mittee is required
to seek anew permit from the Harbor Commission;
WHEREAS, the City desires to amend the NBMC to allow these types of permits
to be transferred adminisiratively, 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 Qouncil for commercial tidelands permits and leases.
NOW THEREFORE., the City Council.of the City .of Newport Beach ordains as
follows;
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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 $0 falling per n. Permits fallin tinder
this. exception may be transferred administratively subject to
approval by the City Manager or Harbor Resources Manager
in accordance withSectiori 17.60-030(C)(4).
Section 2: Subsection "F" is added to Section ITKOK of the Newport Beach
Municipal Code to road 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 vubstantially the
same f6rm,.withJn every commercial permit and 16ase:
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, dernands, 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 andlor other hazardous substances as defined by
City, County, State or Federal laws and regulations. The
pormittee'sliessee's obligations in this indemnity shall not
extend to the degree any Claim is proximately caused by the
&A
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sole negligence or willful misconduct of the City, subject to
. I
any Immunities which may apply to the City with respect to
such Claims. This indemnification provision and any other
indemnification provided elsewhere in this permittlease shall
survive the termination of this permit /lease and shall survive
f h. or the entire time that any t ird . . 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 18, for any reason, held to be invalid or unconstitutional, such decision shall
not affect the validity ity 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
mQi �-e 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 pursuant to Sections 15060(c)(2) (the
activity will not result in a direct or reasonably foreseeable indirect physical change in
the environment) and 1.6060(c)(3) (the activity is not a project as defined in Section
15378) of the C.EQA Guid6lines, 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 s ordinance is not a
project under CE-QA Regulation Section 15061(b)(3) because it has no potential for
causing a significant effect on the environment.
Section 6, The Mayor shall slip and the City Clerk shall attest to the 'passage of
this ordinance: The City C - lerk shall cause this ordinance, or 8 summary thereof, to be
published pursuant to Charter Section.414.
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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
cr-�rl
AARON C. HARP, CITY ATTORNEY
ATTEST:
LEILANI I. BROWN, CITY CLERK
0
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Exhibit C
ORDINANCE NO. 2013
AN ORDINANCE. OF THE CITY COUNCIL OF
THE CITY OF NEWPORT BEACH,
CALIFORNIA REPEALING SUBSECTION
17,351026(F) AND AMENDING SECTION
17.601.060, OF THE NEWPORT BEACH
MUNICIPAL CODE TO REQUIRE
COMMERCIAL TIDELANDS USERS TO,
DEFEND AND INDEMNIFY THE CITY OF
NEWPORT BEACH.
WHEREAS, pursuant to the 108 Beacon Bay 5111, as amended, ("Beacon Bay
Bill") the City of Newport Beach acts 'on. of the State of California as the
trustee of Odeltinds located within the City's.11m.its,.including Newport Harbor;
WHEREAS, Section. 1(b) Of the beacon Bay $111 and title 17 of the Newport
Beach Municipal. Code. ("N.BMC") allow the City to authorize third parties to use
tidelands for c.ornmercl.al. and q6n.cornmercial purposes fora term not to exceed fifty (5 0)
years;
WHEREAS, the. City allows pers,ons. to operate and maintain commercial and
noncommercial plers.. upon.the.tidelaftds under an:annu.blly Issued parmit or lease;
WHEREAS; a small number of piers encroach in front of adjacent abutting
uplan,d pVbpbrty not controlled/ownedby the permittee,
WHEREAS., currently when a permit associated with :a pier that encroaches in
front of adjacent abutting upland. s property is transferred the new pormittee is required
to seek a rh the Harbor Cornrnis.6iom
new permit from
WHEREAS, the City desires to repeal NBMC Subsection 117.35.020(17) to allow
these types of permits to be transferred administratively, similar to the transfer of other
tidelahc1spermits; and
WHEREAS, the City desires to codify the indemni - ty 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 its entirety,
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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 loose
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 1 specific commercial Perm!' 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, p.ermittee/lessQe shall indemnify, defend (with h counsel approved by the C - ity, which
approval shall not be unreasonably Withheld) and hold
.harmless the City, its elected. officials, officers, em.01 . oyees,
agents; attorneys, Volunteers and representatives frorri. and
,against any and all clairrig,.demands, obligations, ons, deanaQes,
actions, causes of action, suits,. losses, judgments, fines,
penalties, liabilities, costs and expenses of every kind and
nature Whatsoever (individually, a "Claim" or collectively;
which. May arise from, or in on . y manner relate
(directly or indirectly) to this. his. permittlease including, but not
limited, to, permittee's/lesspe's: occupancy and use, Or
0. ermitteo'sliessee's guests, Invitees, sublessees, or
licensees occupancy and use, of the public trust lands, or
improvements. includingi but not:11mited 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/lossee'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 pan make a Claim.
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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
Pot 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
1537$) of the -CEQA GQidelines, California Code of Regulatio €is, 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 Linder CEQA Regulation Section 15061(b)(3) because it has no potential for
causing a significant effect on the environment:
Sectian.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,.
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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 OFFICE
AARON C. HARP, CITY ATTORNEY
ATTEST:
LEILANI I. BROWN, CITY CLERK
0
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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 Infra- 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 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)
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2. Any -Ghangean - type- oVexisting ase- of,-tbe- ab4tting -upland-propert"wRed -try
the permiltee
3. Any..change ef- existing- ewaersh0 -of - the- abuit+n"piar"roperty -owned by
the permittee-Gr4 pen the d - Gf_tge -Permi teei
4 - Any - dcetFRstien- ef-the4erand-- fleat4F�-whish- ever- siMy--(6o}- percent -ef44e
repiasernent vatue ef- the - pier- and-iloat-has-been destfeyed.
Befsre the -Harbor- GGmrPj&sion asfs- er+the new permlf- t#e$wn�he-at)Wtting- upland
prepert in front -of %AONsh- the - harbor- facility ensreashes -s#att be- notified in- writ+ng-ef
the - meeting-in -whi&- the - new- penmitwill be rensidered.
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.
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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
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, permitteellessee 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 quests, 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
apply to the City with respect to such Claims. This indemnification provision and anv
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.
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