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