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Home My WebLink About2013-15 - Amending Section 17.60.060 of the Newport Beach Municipal Code to Require Commerical Tidelands Users to Defend and Indemnify the City of Newport BeachORDINANCE 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, 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. `a 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. //1 /// 3 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 24th day of September, 2013, and adopted on the 8th day of October, 2013, by the following vote, to wit: AYES, COUNCILMEMBERS Gardner Petros, Hill Selich, Henn, Daigle, Mayor Curry NOES, COUNCILMEMBERS. None i ! f t '_l THE CITY; O NEY'S OFFICE AARON C. HARP, CITY ATTORNEY ATTEST. Xulw LEILANI 1. BROWN. CITY CLERK I3 F �..�...�.........� KEITH O. CURRY, MAYOR STATE OF CALIFORNIA } COUNTY OF ORANGE } ss. CITY OF NEWPORT BEACH } I, Leilani I. Brown, City Clerk of the City of Newport Beach, California, do hereby certify that the whole number of members of the City Council is seven; that the foregoing ordinance, being Ordinance No. 2013 -15 was duly and regularly introduced on the 24th day of September, 2013, and adopted by the City Council of said City at a regular meeting of said Council, duly and regularly held on the 8th day of October, 2013, and that the same was so passed and adopted by the following vote, to wit: Ayes: Gardner, Petros, Hill, Selich, Henn, Daigle, Mayor Curry Nays: None IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the official seal of said City this 10th day of October, 2013. �Q Rt*1�i c City Clerk City of Newport Beach, California (Seal) CERTIFICATE OF PUBLICATION STATE OF CALIFORNIA } COUNTY OF ORANGE } ss. CITY OF NEWPORT BEACH } I, LEILANI i. BROWN, City Clerk of the City of Newport Beach, California, do hereby certify that Ordinance No. 2013 -15 has been duly and regularly published according to law and the order of the City Council of said City and that same was so published in The Daily Pilot, a daily newspaper of general circulation on the following dates: Introduced Ordinance: September 28, 2013 Adopted Ordinance: October 12, 2013 In witness whereof, I have hereunto subscribed my name this /V/ day of Odk&- 2013. City Clerk City of Newport Beach, California (Seal)