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HomeMy WebLinkAbout2012-119 - Approve Model Permit Template for Residential Piers Located Upon TidelandsRESOLUTION NO. 2012 -119 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH APPROVING A MODEL PERMIT TEMPLATE FOR RESIDENTIAL PIERS LOCATED UPON TIDELANDS 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, the Beacon Bay Bill and Chapter 17.60 of the Newport Beach Municipal Code ( "NBMC ") allow the City to authorize third parties to construct/maintain residential piers upon tidelands; WHEREAS, on July 27, 2010 the City Council formed the Council Ad Hoc Committee on Harbor Charges ( "Committee ") and tasked the Committee with performing a comprehensive review of tidelands uses. The Committee looked at mooring fees, rents at the Balboa Yacht Basin, and rents charged to persons holding commercial pier permits but did not review rents for residential piers; WHEREAS, Mayor Gardner and Council Members Henn and Rosansky have acted as a working group to review residential piers, as the Committee's specific scope of work neared completion; WHEREAS, the working group held a public outreach meeting with residential tidelands users to solicit their input and participation in the tidelands review process and this meeting afforded the public the opportunity to comment on this matter as well as provided the public information relating to this matter; WHEREAS, the City Council has considered all documents and comments in the record in connection with this resolution; and WHEREAS, after considering all public input, the working group recommends adoption of a model permit for residential piers located upon tidelands. NOW, THEREFORE, the City Council of the City of Newport Beach resolves as follows: Section 1: The Recitals provided above are true and correct and are incorporated into the substantive portion of this resolution. de Section 2: The City Council adopts the model residential pier tidelands permit attached to this resolution, and incorporated by this reference, for use by residential pier tidelands users. The City Council finds that the residential tidelands users subject to the attached model permit are not subject to the open bid process found in City Council Policy F -7 because redevelopment/reuse of the tidelands by a third party would require excessive time, resources and costs which would outweigh other financial benefits. Section 3: The City Council determines, even though it has discretion to make determinations regarding the form of template permit and rental provisions therein, that the evidence in the record constitutes substantial evidence to support the actions taken and the findings made in this resolution, that the facts stated in this resolution are supported by substantial evidence in the record, including, without limit, testimony received at public hearings, the Staff presentations and Staff reports made in connection with this matter, all materials in project files, and the Netzer and Rasmuson appraisal reports. The City Council expressly declares that it considered all evidence presented and reached these findings after due consideration of all evidence presented to it and determines that evidence presented that was contrary to the findings made in this resolution was not sufficient or substantial enough to outweigh the evidence supporting this resolution. Section 4: Notwithstanding City Council Policy F -7, the City Council authorizes the City Manager or his /her designee to enter into the attached permit, in a form that is substantially similar to the attached model permit with residential tidelands users. At his /her discretion, the City Manager may refer any permit to the City Council for consideration. Section 5: The City Council finds the adoption of a model permit template for residential pier tidelands uses 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 adoption of a model permit template for residential pier tidelands uses is entitled to a Class 1 Categorical Exemption pursuant to CEQA Regulation Section 15301 because the permit contemplates the continued use of existing facilities, with no expansion of the proposed use. Further, the City Council finds the setting of rent for residential pier tidelands uses and the adoption of a model permit template for residential pier tidelands uses to implement the rent is entitled to a Statutory Exemption pursuant to CEQA Regulation Section 15273(a)(1) because the fair market value rent established by the City Council and implemented by the permit will be used to meet operating expenses within the tidelands. Lastly, the City Council finds the adoption of a model permit template for residential pier tidelands uses is not a project under CEQA -2- Regulation Section 15061(b )(3) because it has no potential for causing a significant effect on the environment. Section 6: If any section, subsection, sentence, clause or phrase of this resolution 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 resolution. The City Council hereby declares that it would have passed this resolution, 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 7: This resolution shall take effect immediately upon its adoption by the City Council, and the City Clerk shall certify the vote adopting the resolution. ADOPTED this 11th day of December, 2012. Nancy Garo` Mayor ATTEST: \jj A�r Y Leilan: E. Brown,- City Clerk Attachment: (1) Model Permit Template for Residential Piers -3- Residential Tidelands Pier Permit (1) Permittee: This Permit is issued on to ( "Permittee ") to construct/maintain a residential pier located upon City of Newport Beach ( "City ") tidelands, as more particularly described and depicted in Attachment 1 ( "Premises "), which is attached hereto and incorporated by reference. By acceptance of this Permit, the Permittee agrees to be bound by the terms contained in this Permit. (2) Term: This Permit shall be valid for a period of twelve (12) calendar months beginning on March 1, 20_ and expiring on February _, 20_, unless terminated earlier as provided herein. (3) Rent: Rent shall be calculated pursuant to Resolution No. 2012 -_, or any successor /amended resolution. Resolution No. 2012 -_ and any successor /amended resolution are automatically incorporated by reference into this Permit, without any further action by the parties, when adopted by the Newport Beach City Council. (A) Periodic Payment of Rent: One -sixth (1/6) of annual rent for a particular year shall be received by the City within nineteen (19) days after the mailing of the Municipal Services Statement to Permittee. Bi- monthly rent will be billed with the Permittee's Municipal Services Statement. (B) Place for Payment of Rent: All payments of rent shall be made in lawful money of the United States of America and shall be paid to City on line at www.newportbeachca.gov, in person or by United States' mail, or overnight mail service, at the Cashier's Office located at 3300 Newport Boulevard, Newport Beach, CA 92658, or to such other address as City may from time to time designate in writing to the Permittee. The Permittee assumes all risk of loss and responsibility for late charges and delinquency rates if payments are not timely received by the City regardless of the method of transmittal. (C) Late Charges: A ten percent (10 %) late charge, or the maximum rate allowable under State law, shall be added to all payments due but not received by City by the due date. (d) Third -Party Use: This Permit ❑ allows / ❑ does not allow (check one) the Permittee to rent/lease the Premises to a third - party. (4) Utilities and Taxes: The Permittee is solely responsible for obtaining all utilities and paying all taxes, fees and assessments for the Premises or improvements located thereon. (5) Possessory Interest Tax Notice: The City hereby gives notice to the Permittee, pursuant to Revenue and Tax Code Section 107.6 that this Permit may create a possessory interest that is the subject of property taxes levied on such interest, the payment of which taxes shall be the sole obligation of the Permittee. The Permittee 1 shall advise in writing any sublessee, licensee, concessionaire or third party using the Premises of the requirements of Section 107.6. (6) Compliance With Applicable Laws: The Permittee is required at its sole expense to comply with all applicable City, County, State and Federal laws, policies and regulations. (7) Maintenance: The Permittee assumes full responsibility for operation and maintenance and repair of the Premises and associated improvements throughout the term of this Permit at its sole cost, and without expense to the City. (8) Transfer /Assignment: This Permit may be transferred or assigned by the Permittee as provided in the Newport Beach Municipal Code. (9) Termination: This Permit may be terminated for cause (e.g., failure to abide by the terms of this Permit, etc.) by the City with no less than thirty (30) calendar days prior written notice to the Permittee. In the event of termination under this section, the City shall owe no compensation to the Permittee and the Permittee shall remove all improvements from the Premises within ninety (90) calendar days. The Permittee shall continue to pay rent to the City during the period in which the improvements are removed. Alternatively, the Permittee, with the City's prior written consent, may quitclaim all fixtures, equipment, and improvements on the Premises to the City. Notwithstanding any other provision of this Permit as permitted by California Public Resources Code Section 6312, or any successor statute, the parties agree that upon expiration or earlier termination of this Permit the City shall have no liability or obligation to pay compensation for any improvements made to the Premises. (10) Insurance: The Permittee shall maintain liability insurance for the Premises and the improvements located thereon. The City may in its sole and absolute discretion require a Permittee to produce written evidence of the insurance required under this section. FA Attachment 1 Description & Depiction of Premises Premise's Address (or description of general location): Premise's Square Footage: Premise's Depiction: 3 STATE OF CALIFORNIA } COUNTY OF ORANGE } ss. CITY OF NEWPORT BEACH } 1, Leilani 1. 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 resolution, being Resolution No. 2012 -119 was duly and regularly introduced before and adopted by the City Council of said City at a regular meeting of said Council, duly and regularly held on the 11`" day of December, 2012, and that the same was so passed and adopted by the following vote, to wit: Ayes: Hill, Rosansky, Curry, Henn, Mayor Gardner Noes: Daigle Recuse: Selich IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the official seal of said City this 14'x' day of December, 2012. 4k , Pf U r M l � City Clerk Newport Beach, California (Seal)