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HomeMy WebLinkAbout14 - License Agreements Authorization for Temporary Use of Lower CastawaysSEW PART CITY OF NEWPORT BEACH cgGlcoRNP City Council Staff Report Agenda Item No. 14 July 24, 2012 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Community Development Department Kimberly Brandt, AICP, Director 949 - 644 -3226, kbrandt @newportbeachca.gov PREPARED BY: Benjamin M. Zdeba, Assistant Planner APPROVED: �a TITLE: License Agreements Authorization for Temporary Use of Lower Castaways located at 100 Dover Drive ABSTRACT: Authorization for the City to enter into two separate license agreements for the temporary use of the Lower Castaways site for temporary parking, pursuant to City Charter Section 421. RECOMMENDATION: Authorize the Mayor and City Clerk to execute two separate license agreements, one with the Bayshores Community Association and the second with Mariner's Pointe, (Attachment A and Attachment B, respectively) to allow temporary use of the City - owned property. The agreements shall be in substantially the same form as the attachments and shall be reviewed and approved as to form by the City Attorney's Office prior to execution by the Mayor. FUNDING REQUIREMENTS: None; however, if approved, both agreements combined will generate a total revenue of $2,956.94 per month, $35,483.28 annually. License Agreements Authorization for Temporary Use of Lower Castaways July 24, 2012 Page 2 Vicinity Ma em' se i sn- 60o eil ]le s s e sMe. su ''?y.ea� roe ']oz sll�y six sr �+ eoe el] - Py. eN sM we .x0. 611 elS y we wl .m Ali qs sw .11 6" )Op b1 eN e00 eW 401 bo S01 GLIf90P Joe 8• ]E. Jls :. l l ]I0. ]09 lw 3ie 0316.2 200.Ea Q ]19 j13 105 'Y Lower Castaways Site „ l09 .JO6 2b 9w ]w eoa zlwzol lze r mwx zASnnnl )a lzo 201 6z16�1111p�szl l lle L ne lsn2 x o� 6zn (' Lex0 sox 0 u010Z Po ] 2w 06061oi) ]`o � ; 603 4PD e �]y�Q.. .100 �eil bJIE 3 3oJ 20162]els� OJ Sx1Sll sol 9_ � �!(. w]�j � _ ..� ivrz �Y 1L4�1 1 v E"ooeOeo'1z2o LOAS]MwYE -- COASt IMN W xxyy ie90di.7� i5e9F xwl N3w to I�rM91 2s sl t5911 13SS5A 5 1 �y. > IZee9 . �Y S VI s91 is 5 SSeI �SBI �rE 611 �,ze51A 3eelet2 Isl x91 ]OI ESIII x3 S 55 2566 Ar599.���f�� y ale xF--i 6E- 1-IB —)11 ll � raJ.�j��jlJ 2—y' EsSE 2]00 251e SIEI M, i56. E59 -.�+. e 2 5061 Z. 20e0 20 �JYESIb,� 3Sel is9E 2 li � ' 11 ! 55 O 5 e'e S ' 25]s � a9y 16519.]' 2N' 13511 / 2502 601 xe)s. tie) z5oo SzsJ� s xve zsel L .z zeJ !$. � � `• J.1 2sm'�sz1�9.xx1 x »5 wavePL oP zsel aeai) =5]z z 20 ez zuz� e9 �e r elw Be I�R0.trf9e�R's! 0 w91929)9 5�1 90�1�.[oI110e Os lSOe 2]0 x562 '•.2 0 200 1x003 3011 Eeli i�!".Ta[ 'j7S� "_NI 2Sez nez 1 y° e2 lIX �s 4 �� ] (2e00 we xeszi °q x ei .znx nu �zNE xsel xsel v ezx .vex zm i)ez ee 5 129 e1 >e w e6 �1 PBOMk91 0% 03 5 ] )✓ y .al p 5x1 J♦ E. 9 xs]S 641 2)511 ElexE, 2S)I xssl E)29 E)J2 27 General Plan Zoning -a - r_r vLocation m ° General Plan Zoning Present Use CM (Recreational and Marine PC -37 (Castaways Subject Property Parking /staging area Commercial) Marina) North PR Parks and Recreation PC-43 Upper Castaways) Castaways Park South RM (Multiple-Unit Residential RM Multi -Unit Residential Apartment complex CM (Recreational and Marine PC -9 (Bayside Village East Commercial marina Commercial) Boat Launch and Storage) RS -D (Single -Unit Residential R -1 (Single -Unit West Single -unit dwellings Detached ) Residential 2 License Agreements Authorization for Temporary Use of Lower Castaways July 24, 2012 Page 3 DISCUSSION: Lower Castaways Site The property located at 100 Dover Drive was dedicated to the City from the Irvine Company on October 17, 2008. The site is roughly four acres in size, is situated at the northeastern corner of the intersection of West Coast Highway and Dover Drive and is improved with an existing gravel parking lot. It is currently utilized for staging for the City's dredging project in the bay as well as a mock -up area for the City's Civic Center project. Vehicular access is provided by way of a single driveway entry from Dover Drive. Background On November 9, 2011, the Zoning Administrator of the City of Newport Beach approved Limited Term Permit No. XP2011 -006 (Attachment C) to utilize the subject property as an off -site parking lot for workers participating in construction projects within the nearby Bayshores Community. A maximum of thirty (30) parking spaces was approved for a 12 -month period, with a possibility of one 12 -month extension. As conditioned, no storage or permanent improvements are allowed. Within the Bayshores Community, numerous private construction projects and the associated workers impact street parking used by the residents. The limited term permit was requested and approved to help temporarily alleviate the parking issue. No other storage was allowed as part of the approval. On February 29, 2012, the Zoning Administrator of the City of Newport Beach approved Limited Term Permit No. XP2012 -001 (Attachment D) to utilize the subject property as an off -site parking lot for construction workers of the Mariner's Pointe project located across Dover Drive at 100 -300 West Coast Highway. A maximum of fifteen (15) parking spaces were approved for a 12 -month period, with a possibility of one 12 -month extension. As conditioned, no storage or permanent improvements are allowed. The Mariner's Pointe site is limited in size and cannot accommodate on -site parking of construction worker's vehicles during the construction phase of the parking structure. Therefore, the limited term permit was requested and approved to accommodate temporary parking for vehicles of construction workers only. License Agreements Both Limited Term Permits include conditions of approval requiring the applicants to enter into license agreements with the City that specify the insurance, duration, terms consistent with the conditions of approval, and fee. The draft license agreement for the Bayshores Community Association limits the duration to 12 months with an extension option for an additional 12 -month period and requires a fee amount of $1,819.44 per month, $21,833.28 annually. Similarly, the Mariner's Pointe license agreement limits the duration to12 months with an extension option for an additional 12 -month period and requires a fee of $1,137.50 per month, $13,650 annually. 3 License Agreements Authorization for Temporary Use of Lower Castaways July 24, 2012 Page 4 Consistent with Section 421 (Contracts. Execution.) of the City Charter, the City Council must authorize the execution of the license agreements before they are rendered effective and valid. Staff recommends the City Council authorize the execution of the two license agreements as they are not anticipated to be detrimental to the area as conditioned and will generate additional revenue for the City. ENVIRONMENTAL REVIEW: On November 9, 2011 for Limited Term Permit No. XP2011 -006 and on February 29, 2012 for Limited Term Permit No. XP2012 -001, the Zoning Administrator determined the projects to be exempt from the California Environmental Quality Act ( "CEQA ") pursuant to Section 15304 (Class 4, Minor Alterations to Land) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3; Class 4 exempts minor temporary uses of land having negligible or no permanent effects on the environment. No further environmental review is required to authorize execution of the agreements. The agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers the item). Submitted by: Kimberly Brand , AICP Director Attachments: CC 1 Draft Bayshores Community Association License Agreement CC 2 Draft Mariner's Pointe License Agreement CC 3 Limited Term Permit No. XP2011 -006 CC 4 Limited Term Permit No. XP2012 -001 4 Attachment No. CC 1 Draft Bayshores Community Association License Agreement 0 REVOCABLE LICENSE AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH AND BAYSHORES COMMUNITY ASSOCIATION TEMPORARY USE OF CITY PROPERTY THIS REVOCABLE LICENSE AGREEMENT FOR TEMPORARY USE OF CITY PROPERTY ( "License ") is made and entered into as of this day of . 2012 ( "Effective Date "), by and between the City of Newport Beach, a California Municipal Corporation ( "City"), and Bayshores Community Association, a California nonprofit mutual benefit corporation ( "Licensee "), and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of the City. B. City is the owner of real property in the City of Newport Beach located at 100 Dover Drive, and depicted in Exhibit "A" ( "Premises "). C. Licensee is Bayshores Community Association, a California nonprofit mutual benefit corporation. D. Licensee has requested that it be allowed to use a portion of the Premises ("License Area") for temporary parking of vehicles. E. City and Licensee desire to enter into this Agreement to allow Licensee to use the License Area on a non - exclusive basis, subject to the covenants and conditions set forth in this Agreement. F. In consideration of the mutual promises and obligations contained in this Agreement, the receipt and sufficiency of which is hereby acknowledged, City hereby grants to Licensee the revocable right to temporarily occupy and use the License Area, and Licensee accepts the same on the following terms and conditions. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. LICENSE City grants a non - exclusive license ( "License ") to Licensee for the term of this Agreement for Licensee to use the License Area for the temporary parking of no more than thirty (30) vehicles. The License granted herein is subject to the terns, covenants and conditions hereinafter set forth, and Licensee covenants, as a material part of the consideration for this License, to keep and perform each and every tern, covenant and condition of this Agreement. Al 1.011931 Ucem Agreement Bayshores 7.17.12 2. USE OF THE LICENSE AREA Licensee's use of the License Area shall be limited to the terns of this Agreement. 3. PERMITS AND LICENSES Licensee, at its sole expense, shall obtain and maintain during the term of this Agreement, all appropriate permits, licenses and certificates that may be required by any governmental agency including Licensor. 4. TERM The term of this License shall commence on the Effective Date, and continue for twelve (12) months unless terminated earlier as set forth herein. S. RENEWAL The City Manager may renew this License for one (1) additional twelve (12) month term If he/she finds (1) that the terms of the agreement have been met (11) a Limited Tenn Permit as defined by the City's Zoning Code has been approved; and (iii) and the use by Licensee is not causing any negative Impact on traffic circulation, parking, or surrounding properties and uses. 6. LICENSE FEE Licensee shall pay the City one thousand eight hundred nineteen dollars and forty-four cents ($1,819.44) per month which amount shall be due and payable on the first of each month (the "Due Date "). If Licensee fails to pay the License Fee within thirty (30) days of the Due Date, Licensee shall pay a late charge in an amount equal to ten percent (10 %) of the amount that was not timely paid by the Licensee. 7. THE PURPOSE OF THIS LICENSE 7.1 The purpose of this License is to provide for the temporary use of the License Area within the Premises. Use of area outside the License Area will not be allowed unless prior permission is given in writing by the City. Licensee agrees to use the License Area only for the activities described herein, and not to use or permit the use of the License Area for any other purpose without first obtaining the prior written consent of City, which consent may be withheld in City's sole discretion. Acceptable activities include: 7.1.1 Use of up to thirty (30) parking spaces for the temporary parking of vehicles of homeowners or their employees. 7.1.2 Parking shall be permitted only during daylight hours and no overnight parking is permitted. 2 A11 -011M License Agreement Bayshores 7.17.12 7.1.3 Licensee must maintain a valid Limited Term Permit for all activities in the License Area during the term of the License. 8. CONDITIONS OF LICENSE 8.1 Licensee shall comply with the following conditions prior to the commencement of use of the License Area. 8.1.1 Prohibited Activities: Parking and storage of construction vehicles or equipment is expressly prohibited. No improvements to the License Area are permitted. 8.1.2 Maintenance: Licensee shall be responsible for maintenance of the License Area including, but not limited to, the routine removal of foreign material, waste, and debris. Licensee's obligation to maintain the License Area shall include a regular preventative maintenance program, together with routine repairs caused by normal wear and tear, to be provided by a licensed service company acceptable to City. Licensee shall obtain all required Building permits necessary for such repair. 8.1.2.1 City shall be entiUed, with a Licensee representative, to Inspect the License Area for compliance with the terms of this Agreement, and with all applicable Federal, State and local (including those of the City) government regulations. 9. TERMINATION OF LICENSE 9.1 Notwithstanding the tern of this License, this License may be terminated during the tern or any extended term in the following manner. 9.1.1 By Licensee: At any time, without cause upon the giving of thirty (30) days written notice of termination to City; 9.1.2 By City: At any time, without cause upon the giving of thirty (30) days written notice of termination to Licensee; or 9.1.3 If, after written notice of default to Licensee of any of the terms or conditions of this License, Licensee fails to cure or correct the default within ten (10) business days of receipt of written notice, City may immediately terminate the License. 10. ADMINISTRATION This License will be administered by the Community Development Department. The Community Development Director or his/her designee shall be the Project Administrator and shall have the authority to act for City under this License. The Project Administrator or his/her authorized representative shall represent City in all matters pertaining to this License. 3 A11d111931 Ucense Agreement 9ayshores 7.17.12 11. INDEMNITY AND LIABILITY FOR DAMAGES 11.1 Licensee shall indemnify, defend and hold harmless City, Its City Council, boards and commissions, officers, agents, volunteers, and employees (collectively, the "Indemnified Parties ") from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims "), which may arise from or in any manner relate (directly or Indirectly) to any breach of the terms and conditions of this License, any work performed or services provided under this License including, without limitation, defects in workmanship or materials or Licensee's presence or activities conducted that relate In any way to this License (Including the negligent and/or willful acts, errors and/or omissions of Licensee, employees, vendors, suppliers, and anyone employed directly or Indirectly by any of them or for whose acts they may be liable or any or all of them). Notwithstanding the foregoing, nothing herein shall be construed to require Licensee to indemnify the Indemnified Parties from any Claim arising from the sole negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees In any action on or to enforce the terms of this License. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Licensee. 11.2 Licensee shall be liable and responsible for the security, repair and maintenance of the License Area to the extent necessitated by Licensee's use of the License Area under this License, for such time as this License is in effect. Licensee shall use care to protect the License Area and restore It to its original condition to the satisfaction of the City when the License Area is not in use by Licensee. 12. INSURANCE 12.1 Provision of Insurance. Without limiting Licensee's indemnification of City, and prior to commencement of work, Licensee shall obtain, provide and maintain at Its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to City. Licensee agrees to provide insurance in accordance with requirements set forth here. If Licensee uses existing coverage to comply and that coverage does not meet these requirements, Licensee agrees to amend, supplement or endorse the existing coverage. 12.2 Acceptable Insurers. All Insurance policies shall be Issued by an Insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. 4 At "11931 license Agreement Bayshores 7.17.12 12.3 Coverage Reguirements. 12.3.1 Workers' Compensation Insurance. Licensee shall maintain Workers' Compensation Insurance, statutory limits, and Employer's Liability Insurance with limits of at least one million dollars ($1,000,000) each accident for bodily injury by accident and each employee for bodily injury by disease in accordance with the laws of the State of Califomia, Section 3700 of the Labor Code. 12.3.1.1 Licensee shall submit to City, along with the certificate of Insurance, a Waiver of Subrogation endorsement in favor of City, its officers, agents, employees and volunteers. 12.3.2 General Liability Insurance. Licensee shall maintain commercial general liability insurance, and if necessary umbrella liability insurance, with coverage at least as broad as provided by Insurance Services Office form CG 00 01, in an amount not less than one million dollars ($1,000,000) per occurrence, two million dollars ($2,000,000) general aggregate. The policy shall cover liability arising from premises, operations, products - completed operations, personal and advertising injury, and liability assumed under an insured contract (including the tort liability of another assumed in a business contract) with no endorsement or modification limiting the scope of coverage for liability assumed under a contract. 12.3.3 Automobile Liability Insurance. Licensee shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily Injury and property damage for all activities of the Licensee arising out of or in connection with Work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit each accident. 12.4 Other Insurance Requirements. The policies are to contain, or be endorsed to contain, the following provisions: 12.4.1 Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers or shall specifically allow Licensee or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Licensee hereby waives its own right of recovery against City, and shall require similar written express waivers from each of its contractors. 12.4.2Additional Insured Status. All liability policies including general liability, excess liability, pollution liability, and automobile liability, but not including professional liability, shall provide or be endorsed to provide that City and its officers, officials, employees, and agents shall be Included as insureds under such policies. 12.4.3 Primary and Non Contributory. All liability coverage shall apply on a primary basis and shall not require contribution from any insurance or self- insurance maintained by City. 5 A11 -011931 Ueense Agreement Bayshores 7.17.12 12.4.4 Notice of Cancellation. All policies shall provide City with thirty (30) days notice of cancellation (except for nonpayment for which ten (10) days notice is required) or nonrenewal of coverage for each required coverage. 12.5 Additional Aareements Between the Parties. The parties hereby agree to the following: 12.5.1 Evidence of Insurance. Licensee shall provide certificates of Insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers' compensation and other endorsements as specified herein for each coverage. Insurance certificates and endorsement must be approved by City's Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. City reserves the right to require complete, certified copies of all required Insurance policies, at anytime. 12.5.2 City s Riaht to Revise Requirements. The City reserves the right at any time during the term of the Agreement to change the amounts and types of insurance required by giving the Licensee sixty (60) days advance written notice of such change. If such change results in substantial additional cost to the Licensee, the City and Licensee may renegotiate Licensee's compensation. 12.5.3 Enforcement of Agreement Provisions. Licensee acknowledges and agrees that any actual or alleged failure on the part of the City to inform Licensee of non - compliance with any requirement imposes no additional obligations on the City nor does it waive any rights hereunder. 12.5.4 Requirements not Limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any parry or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. 12.5.5 Self- insured Retentions. Any self- insured retentions must be declared to and approved by City. City reserves the right to require that self - insured retentions be eliminated, lowered, or replaced by a deductible. Self- insurance will not be considered to comply with these requirements unless approved by City. 12.5.6 City Remedies for Non Compliance If Licensee or any subcontractor fails to provide and maintain insurance as required herein, then City shall have the right but not the obligation, to purchase such insurance, to terminate this agreement, or to suspend Licensee's right to proceed until proper evidence of insurance is provided. Any amounts paid by City shall, at City's sole option, be deducted from amounts payable to Licensee or reimbursed by Licensee upon demand. 12.5.7 Timely Notice of Claims. Licensee shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Licensee's J At t -01193! License Agreement BaygMres 7.17.12 performance under this Agreement, and that involve or may involve coverage under any of the required liability policies. 12.5.8 Licensee's Insurance. Licensee shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the Work. 13. PROHIBITION AGAINST ASSIGNMENT AND TRANSFER This License shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City which approval may be withheld in the City's sole discretion. 14. CONFLICT OF INTEREST The Licensee or its employees may be subject to the provisions of the California Political Reform Act of 1974 ( "Act "), which (a) requires such persons to disclose any financial interest that may foreseeably be materially affected by the work performed under this License, and (b) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. If subject to the Act, Licensee shall conform to all requirements of the Act. Notwithstanding Section 9.1.3, failure to conform to the requirements of the Act constitutes a material breach and is grounds for immediate termination of this License by City. Licensee shall indemnify and hold harmless City for any and all claims for damages resulting from Licensee's violation of this Section. 15. NOTICE 15.1 All notices, demands, requests or approvals to be given under the terms of this License shall be given in writing, and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first -class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Licensee to City shall be addressed to City at: Attn: Kimberly Brandt, Director Community Development Department City of Newport Beach 3300 Newport Boulevard Newport Beach, CA, 92663 Phone: 949-644-3200 Fax: 949 - 644 -3229 7 Al"M31 License Agreement Baysiwres 7.17.12 15.2 All notices, demands, requests or approvals from City to Licensee shall be addressed to Licensee at: Attn: Mike Kubas Bayshores Community Association c% Elite Property Service, Inc. P.O. Box 5388 Irvine, CA 92618 Phone: 714 -357 -9111 Fax: 877 - 569 -6132 16. STANDARD PROVISIONS 16.1 Compliance with all Laws. Licensee shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all work'prepared by Licensee shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator. 16.2 Waiver. A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 16.3 Integrated Agreement. This License represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 16.4 Interpretation. The terms of this License shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the License or any other rule of construction which might otherwise apply. 16.5 Amendments. This License may be modified or amended only by a written document executed by both Licensee and City and approved as to form by the City Attorney. 16.6 Severability. If any term or portion of this License is held to be invalid, Illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this License shall continue in full force and effect. 16.7 Controlling Law and Venue. The laws of the State of California shall govem this License and all matters relating to it and any action brought relating to this 8 A11. 011931 License Agreement Bayshores 7.17.12 License shall be adjudicated in a court of competent jurisdiction in the County of Orange. 16.8 Taxes. Licensee acknowledges that the License granted herein may be subject to possessory interest taxes. Licensee shall have the sole obligation to pay any taxes, fees and assessments, plus applicable penalties and interest, which may be imposed by law and arise out of Licensee's License hereunder. Licensee shall indemnify, defend and hold harmless City against any and all such taxes, fees, penalties or interest assessed, or imposed against City hereunder. 16.9 No Third Party Riohts. The Parties do not intend to create rights in or grant remedies to, any third party as a beneficiary of this License, or of any duty, covenant, obligation or undertaking established herein. 16.10 No Attorneys' Fees. In the event of any dispute under the terms of this License the prevailing party shall not be entitled to attomeys' fees. 16.11 Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. [SIGNATURES ON NEXT PAGE] 9 A11. 011931 Memo Agmment Beyshom 7.17.12 IN WITNESS WHEREOF, the parties have caused this License to be executed on the dates written below. APPROVED AS TO FORM: OFFICE OF HE CITY ATTORNEY Date: 71&'//2 By: Rw, 4 "Al Aaron C. Harp City Attorney 110 ATTEST: Date: Leilani I. Brown City Clerk CITY OF NEWPORT BEACH, A California municipal corporation Date: By: Nancy Gardner Mayor LICENSEE: Bayshores Community Association, a California nonprofit mutual benefit corporation Name: Title: Date: By: Name: Title: [END OF SIGNATURES] Attachments: Exhibit A: License Area 10 A11 -01193/ License Agreement Bayshores 7.17.12 u �� -it," rk i r,� Attachment No. CC 2 Draft Mariner's Pointe License Agreement 21 22 REVOCABLE LICENSE AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH AND KRAUS CONSTRUCTION, INC. TEMPORARY USE OF CITY PROPERTY THIS REVOCABLE LICENSE AGREEMENT FOR TEMPORARY USE OF CITY PROPERTY ( "License ") is made and entered into as of this _day of , 2012 ( "Effective Date "), by and between the City of Newport Beach, a California Municipal Corporation ( "City"), and Kraus Construction, Inc., a California corporation ( "Licensee "), and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of the City. B. City is the owner of real property in the City of Newport Beach located at 100 Dover Drive, and depicted in Exhibit "A" ( "Premises "). C. Licensee is Kraus Construction, Inc., a California corporation. D. Licensee has requested that it be allowed to use a portion of the Premises ( "License Area ") for temporary parking of vehicles. E. City and Licensee desire to enter into this Agreement to allow Licensee to use the License Area on a non - exclusive basis, subject to the covenants and conditions set forth in this Agreement. F. In consideration of the mutual promises and obligations contained in this Agreement, the receipt and sufficiency of which is hereby acknowledged, City hereby grants to Licensee the revocable right to temporarily occupy and use the License Area, and Licensee accepts the same on the following terms and conditions. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. LICENSE City grants a non - exclusive license ( "License ") to Licensee for the tern of this Agreement for Licensee to use the License Area for the temporary parking of no more than fifteen (15) vehicles. The License granted herein is subject to the terms, covenants and conditions hereinafter set forth, and Licensee covenants, as a material part of the consideration for this License, to keep and perform each and every term, covenant and condition of this Agreement. A11 -011831 License Agreement Kraus7.17.12 2. USE OF THE LICENSE AREA Licensee's use of the License Area shall be limited to the terms of this Agreement. 3. PERMITS AND LICENSES Licensee, at its sole expense, shall obtain and maintain during the term of this Agreement, all appropriate permits, licenses and certificates that may be required by any governmental agency including Licensor. 4. TERM The term of this License shall commence on the Effective Date, and continue for twelve (12) months unless terminated earlier as set forth herein. 5. RENEWAL The City Manager may renew this License for one (1) additional twelve (12) month term If he/she finds (1) that the terms of the agreement have been met (ii) a Limited Term Permit as defined by the City's Zoning Code has been approved; and (iii) and the use by Licensee is not causing any negative impact on traffic circulation, parking, or surrounding properties and uses. 6. LICENSE FEE Licensee shall pay the City one thousand one hundred thirty seven dollars and fifty cents ($1,137.50.44) per month which amount shall be due and payable on the first of each month (the "Due Date "). If Licensee fails to pay the License Fee within thirty (30) days of the Due Date, Licensee shall pay a late charge In an amount equal to then percent {10 %) of the amount that was not timely paid by the Licensee. 7. THE PURPOSE OF THIS LICENSE 7.1 The purpose of this License is to provide for the temporary use of the License Area within the Promises. Use of area outside the License Area will not be allowed unless prior permission is given in writing by the City. Licensee agrees to use the License Area only for the activities described herein, and not to use or permit the use of the License Area for any other purpose without first obtaining the prior written consent of City, which consent may be withheld in City's sole discretion. Acceptable activities include: 7.1.1 Use of up to fifteen (15) parking spaces for the temporary parking of vehicles of homeowners or their employees. 7.1.2 Parking shall be permitted only between the hours of 7:00 a.m and 5:00 p.m., Monday through Friday. 2 AN -01183/ Mom Agreement Kraus7.17.12 7.1.3 Licensee must maintain a valid Limited Term Permit for all activities In the License Area during the term of the License. 8. CONDITIONS OF LICENSE 8.1 Licensee shall comply with the following conditions prior to the commencement of use of the License Area. 8.1.1 Prohibited Activities: Parking and storage of construction vehicles or equipment is expressly prohibited. No improvements to the License Area are permitted. 8.1.2 Maintenance: Licensee shall be responsible for maintenance of the License Area including, but not limited to, the routine removal of foreign material, waste, and debris. Licensee's obligation to maintain the License Area shall include a regular preventative maintenance program, together with routine repairs caused by normal wear and tear, to be provided by a licensed service company acceptable to City. Licensee shall obtain all required Building permits necessary for such repair. 8.1.2.1 City shall be entitled, with a Licensee representative, to Inspect the License Area for compliance with the terms of this Agreement, and with all applicable Federal, State and local (including those of the City) government regulations. 9. TERMINATION OF LICENSE 9.1 Notwithstanding the term of this License, this License may be terminated during the term or any extended term in the following manner: 9.1.1 By Licensee: At any time, without cause upon the giving of thirty (30) days written notice of termination to City; 9.1.2 By City: At any time, without cause upon the giving of thirty (30) days written notice of termination to Licensee; or 9.1.3 If, after written notice of default to Licensee of any of the terms or conditions of this License, Licensee fails to cure or correct the default within ten (10) business days of receipt of written notice, City may immediately terminate the License. 10. ADMINISTRATION This License will be administered by the Community Development Department. The Community Development Director or his/her designee shall be the Project Administrator and shall have the authority to act for City under this License. The Project Administrator or his/her authorized representative shall represent City in all matters pertaining to this License. 3 A11 -01183/ UeeM Agreement Kreus7.17.12 11. INDEMNITY AND LIABILITY FOR DAMAGES 11.1 Licensee shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers, and employees (collectively, the "Indemnified Parties ") from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims "), which may arise from or in any manner relate (directly or indirectly) to any breach of the terms and conditions of this License, any work performed or services provided under this License including, without limitation, defects in workmanship or materials or Licensee's presence or activities conducted that relate in any way to this License (including the negligent and/or willful acts, errors and /or omissions of Licensee, employees, vendors, suppliers, and anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them). Notwithstanding the foregoing, nothing herein shall be construed to require Licensee to indemnify the Indemnified Parties from any Claim arising from the sole negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees In any action on or to enforce the terms of this License. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Licensee. 11.2 Licensee shall be liable and responsible for the security, repair and maintenance of the License Area to the extent necessitated by Licensee's use of the License Area under this License, for such time as this License is in effect. Licensee shall use care to protect the License Area and restore it to its original condition to the satisfaction of the City when the License Area is not in use by Licensee. 12. INSURANCE 12.1 Provision of Insurance. Without limiting Licensee's indemnification of City, and prior to commencement of work, Licensee shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to City. Licensee agrees to provide insurance in accordance with requirements set forth here. If Licensee uses existing coverage to comply and that coverage does not meet these requirements, Licensee agrees to amend, supplement or endorse the existing coverage. 12.2 Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. 4 A11A119V License Agreement Kraus7.17.12 12.3 Cov_eraoe Reauirements. 12.3.1 Workers' Compensation Insurance. Licensee shall maintain Workers' Compensation Insurance, statutory limits, and Employer's Liability Insurance With limits of at least one million dollars ($1,000,000) each accident for bodily injury by accident and each employee for bodily injury by disease in accordance with the laws of the State of California, Section 3700 of the Labor Code. 12.3.1.1 Licensee shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement In favor of City, its officers, agents, employees and volunteers. 12.3.2 General Liability Insurance. Licensee shall maintain commercial general liability insurance, and if necessary umbrella liability insurance, with coverage at least as broad as provided by Insurance Services Office form CG 00 01, in an amount not less than one million dollars ($1,000,000) per occurrence, two million dollars ($2,000,000) general aggregate. The policy shall cover liability arising from premises, operations, products - completed operations, personal and advertising injury, and liability assumed under an insured contract (including the tort liability of another assumed in a business contract) with no endorsement or modification limiting the scope of coverage for liability assumed under a contract. 12.3.3 Automobile Liability Insurance. Licensee shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of the Licensee arising out of or in connection with Work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, In an amount not less than one million dollars ($1,000,000) combined single limit each accident. 12.4 Other Insurance Reauirements. The policies are to contain, or be endorsed to contain, the following provisions: 12.4.1 Waiver of Subrogation . All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers or shall specifically allow Licensee or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Licensee hereby waives its own right of recovery against City, and shall require similar written express waivers from each of its contractors. 12.4.2 Additional Insured Status. All liability policies Including general liability, excess liability, pollution liability, and automobile liability, but not including professional liability, shall provide or be endorsed to provide that City and its officers, officials, employees, and agents shall be included as insureds under such policies. 12.4.3 Primary and Non Contributory. All liability coverage shall apply on a primary basis and shall not require contribution from any insurance or self- insurance maintained by City. 5 All -01193/ UcenseAgreement Kraus7.17.12 12.4.4 Notice of Cancellation. All policies shall provide City with thirty (30) days notice of cancellation (except for nonpayment for which ten (10) days notice is required) or nonrenewal of coverage for each required coverage. 12.5 Additional Agreements Between the Parties. The parties hereby agree to the following: 12.5.1 Evidence of Insurance. Licensee shall provide certificates of Insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers' compensation and other endorsements as specified herein for each coverage. Insurance certificates and endorsement must be approved by City's Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. City reserves the right to require complete, certified copies of all required Insurance policies, at anytime. 12.5.2 Citv's Riaht to Revise Reaulrements. The City reserves the right at any time during the term of the Agreement to change the amounts and types of insurance required by giving the Licensee sixty (60) days advance written notice of such change. If such change results in substantial additional cost to the Licensee, the City and Licensee may renegotiate Licensee's compensation. 12.5.3 Enforcement of Agreement Provisions. Licensee acknowledges and agrees that any actual or alleged failure on the part of the City to inform Licensee of non - compliance with any requirement imposes no additional obligations on the City nor does it waive any rights hereunder. 12.5.4 Requirements not Limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any Insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all Inclusive, or to the exclusion of other coverage, or a waiver of any type. 12.5.5 Self- insured Retentions. Any self - insured retentions must be declared to and approved by City. City reserves the right to require that self - insured retentions be eliminated, lowered, or replaced by a deductible. Self- insurance will not be considered to comply with these requirements unless approved by City. 12.5.6 City Remedies for Non Compliance If Licensee or any subcontractor fails to provide and maintain insurance as required herein, then City shall have the right but not the obligation, to purchase such insurance, to terminate this agreement, or to suspend Licensee's right to proceed until proper evidence of insurance Is provided. Any amounts paid by City shall, at City's sole option, be deducted from amounts payable to Licensee or reimbursed by Licensee upon demand. 12.51Timely Notice of Claims. Licensee shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Licensee's 1� A11 -011931 License Agreement Kmus7.17.12 performance under this Agreement, and that involve or may involve coverage under any of the required liability policies. 12.5.8 Licensee's Insurance. Licensee shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the Work. 13. PROHIBITION AGAINST ASSIGNMENT AND TRANSFER This License shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City which approval may be withheld in the City's sole discretion. 14. CONFLICT OF INTEREST The Licensee or its employees may be subject to the provisions of the California Political Reform Act of 1974 ( "Act "), which (a) requires such persons to disclose any financial interest that may foreseeably be materially affected by the work performed under this License, and (b) prohibits such persons from making, or participating In making, decisions that will foreseeably financially affect such interest. If subject to the Act, Licensee shall conform to all requirements of the Act. Notwithstanding Section 9.1.3, failure to conform to the requirements of the Act constitutes a material breach and is grounds for immediate termination of this License by City. Licensee shall indemnify and hold harmless City for any and all claims for damages resulting from Licensee's violation of this Section. 15. NOTICE 15.1 All notices, demands, requests or approvals to be given under the terns of this License shall be given in writing, and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first -class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Licensee to City shall be addressed to City at: Attn: Kimberly Brandt, Director Community Development Department City of Newport Beach 3300 Newport Boulevard Newport Beach, CA, 92663 Phone: 949 -644 -3200 Fax: 949 -644 -3229 7 A11 -01193/ Ucense Agreement Kraus7.17.12 15.2 All notices, demands, requests or approvals from City to Licensee shall be addressed to Licensee at: Attn: Greg Thien, Vice President Kraus Construction, Inc. 21542 Surveyor Circle Huntington Beach, CA 92646 Phone: (714) 458 -4899 Fax: (714) 536 -9249 16. STANDARD PROVISIONS 16.1 Compliance with all Laws. Licensee shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all work prepared by Licensee shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator. 16.2 Waiver. A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 16.3 Intearated Agreement. This License represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 16.4 Interpretation. The terms of this License shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the License or any other rule of construction which might otherwise apply. 16.5 Amendments. This License may be modified or amended only by a written document executed by both Licensee and City and approved as to form by the City Attorney. 16.6 Severability. If any term or portion of this License is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this License shall continue in full force and effect. 16.7 Controllina Law and Venue. The laws of the State of California shall govern this License and all matters relating to it and any action brought relating to this License shall be adjudicated in a court of competent jurisdiction in the County of Orange. 8 A11 -011831 license Agreement Kraus7.17.12 16.8 Taxes. Licensee acknowledges that the License granted herein may be subject to possessory Interest taxes. Licensee shall have the sole obligation to pay any taxes, fees and assessments, plus applicable penalties and Interest, which may be Imposed by law and arise out of Licensee's License hereunder. Licensee shall indemnify, defend and hold harmless City against any and all such taxes, fees, penalties or interest assessed, or imposed against City hereunder. 16.9 No Thins Party Rights. The Parties do not Intend to create rights in or grant remedies to, any third party as a beneficiary of this License, or of any duty, covenant, obligation or undertaking established herein. 16.10 No Attorneys' Fees. In the event of any dispute under the terns of this License the prevailing party shall not be entitled to attorneys' fees. 16.11 Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. [SIGNATURES ON NEXT PAGE] 9 A11. 011931 License Agreement Kraus7.17.12 IN WITNESS WHEREOF, the parties have caused this License to be executed on the dates written below. APPROVED AS TO FORM: OFFICE Of THE CITY ATTORNEY Date: 4�� BarVl� Aaron C. Harp V City Attorney ATTEST: Date: By: Leilani I. Brown City Clerk Attachments: Exhibit A: A11- 01193/ License Agreement Kraus7.17.12 CITY OF NEWPORT BEACH, A California municipal corporation Date: Bv: Nancy Gardner Mayor LICENSEE: Kraus Construction, Inc., a California corporation Name: Title: Date: By: Name: Title: [END OF SIGNATURES] License Area 10 a»- 011e31 ueemoftm ontKaus7.n.1a Exhibit " A" License Area 11 � o j i ,r r 1 Ac 3� Attachment No. CC 3 Limited Term Permit No. XP2011 -006 37 MOO November 9, 2011 COMMUNITY DEVELOPMENT DEPARTMENT PLANNING DIVISION 3300 Newport Boulevard. Building C, Newport Beach, CA 92663 (949) 644 -3200 Fax: (949) 644 -3229 www.newportbeachca.gov NOTICE OF ZONING ADMINISTRATOR ACTION Bayshores Community Association 2889 Bayshore Drive Newport Beach, CA 92663 Application No. Limited Term Permit — Greater than 90 days No. XP2011 -006 (PA2011 -158) Site Address 100 Dover Drive Temporary Parking Lot On November 9. 2011, the above referenced application was approved based on the findings and conditions in the attached action letter. By-:!:�� Ja'Ime Murillo, Zoning Administrator JM/bmz APPEAL PERIOD: Limited Term Permit applications do not become effective until 14 days following the date of action. Prior to the effective date the applicant or any interested party may appeal the decision of the Zoning Administrator to the Planning Commission by submitting a written appeal application to the Community Development Director. For additional information on filing an appeal, contact the Planning Division at 949 644 -3200. cc: contact Steve Roberts 2542 Crestview Drive Newport Beach, CA 92663 Tmplt:07106 /11 39 COMMUNITY DEVELOPMENT DEPARTMENT t, PLANNING DIVISION 3300 Newport Boulevard, Building C. Newport Beach, CA 92663 (949)644 -3200 Fax:(949)644 -3229 �\ \� �\.newportbeachca.go% ZONING ADMINISTRATOR ACTION LETTER Application No. Limited Term Permit— Greater than 90 days No. XP2011 -006 (PA2011 -158) Applicant Bayshores Community Association Site Address 100 Dover Drive Temporary Parking Lot Legal Description Tract 1125, Portion of Lot 1 On November 9, 2011, the Zoning Administrator approved the following: A Limited Term Permit application to utilize the property located at 100 Dover Drive as an off -site parking lot for workers participating in construction projects within the Bayshores Community. A maximum of thirty (30) parking spaces are proposed for a 12 -month period. The property is located in the PC -37 (Castaways Marina) District. The Zoning Administrator's approval is based on the following findings and subject to the following conditions. FINDINGS 1. Finding: This project has been reviewed, and it has been determined that it is categorically exempt from the requirements of the California Environmental Quality Act under Class 4 (Minor Alterations to Land). Facts in Support of Finding: • Class 4 exempts minor temporary uses of land having negligible or no permanent effects on the environment. • No improvements other than a temporary barricade or cones and a sign are proposed or permitted on the lot and the surrounding vegetation and environment will be maintained. 2. Finding: The operation of the requested limited duration use at the location proposed and within the time period specified would not be detrimental to the harmonious and orderly growth of the City, nor endanger, jeopardize, or otherwise constitute a hazard to the public convenience, health, interest, safety, or general welfare of persons residing or working in the neighborhood of the requested limited duration use; 40 Temporary Parking Lot November 9, 2011 Page 2 Facts in Support of Finding: • The lot is currently being utilized as a staging area for the City's bay dredging project as well as the Civic Center project and these uses have not proven detrimental. • The limited duration use will be a temporary parking lot in which no construction staging, storage, or construction vehicles will be permitted as conditioned. 3. Finding: The subject lot is adequate in size and shape to accommodate the limited duration use without material detriment to the use and enjoyment of other properties located adjacent to and in the vicinity of the lot; Facts in Support of Finding: • The subject lot is approximately four acres in size. Based upon the site plan, there is adequate area to accommodate the proposed limited duration use of a parking area for a maximum of 30 vehicles as well as the existing temporary uses. • The lot is bound by Coast Highway to the south and Dover Drive to the west which serve as a buffer between the nearby residential properties within the R -1 (Single -Unit Residential) Zoning District. The lot is abutting a property to the north within the PC-43 (Upper Castaways) Zoning District currently utilized as a public park and walking trail and to the east is the Newport Harbor. 4. Finding: The subject lot is adequately served by streets or highways having sufficient width and improvements to accommodate the kind and quantity of traffic that the limited duration use would or could reasonably be expected to generate: Facts in Support of Finding: • The subject lot has one direct driveway approach taken from northbound Dover Drive. • The vehicles (30) would typically access the site early morning prior to peak hour and mid -late afternoon prior to peak hour; therefore, there is no traffic issue anticipated. • The limited duration use is a temporary parking lot for vehicles of workers participating in construction projects within the Bayshores Community. Heavy entering- and - exiting traffic is not anticipated. P:\PAs - 2011\PA2011- 1581PA2011 -158 Actn Lttr.docx Tmph: 08 /02 /11 41 Temporary Parking Lot November 9, 2011 Page 3 5. Finding: Adequate temporary parking to accommodate vehicular traffic to be generated by the limited duration use would be available either on -site or at alternate locations acceptable to the Zoning Administrator; and Facts in Support of Finding: The proposed limited duration use will lessen the impact of construction workers' personal vehicles on the residential parking within the Bayshores Community. Finding: The limited duration use is consistent with all applicable provisions of the General Plan, any applicable specific plan, the Municipal Code, and other City regulations. Facts in Support of Finding: The CM (Recreation and Marine Commercial) designation of the Land Use Element of the General Plan is intended to provide for commercial development on or near the bay in a manner that will encourage the continuation of coastal - dependent and coastal- related uses, maintain the marine theme and character, encourage mutually supportive businesses, encourage visitor - serving and recreational uses, and encourage physical and visual access to the bay on waterfront commercial and industrial building sites on or near the bay. The proposed use is of a limited duration and will not impede use of the site consistent with the CM designation. Section IV.B (Permitted Uses) of the PC -37 (Castaways Marina) Planned Community text allows temporary uses as specified within the Zoning Code and the proposed limited duration use is consistent with this designation. The site is not located within a specific plan area. CONDITIONS The development shall be in substantial conformance with the approved site plan except as noted in the following conditions. Anything not specifically approved by this limited term permit is prohibited and must be addressed by a separate and subsequent review. 3. The limited term permit shall expire 12 months from the effective date of this permit, unless an extension of up to one additional period of 12 months is granted by the Zoning Administrator. P:1PAs - 2011\PA2011- 158 \PA2011 -158 Actn Lttr.docx Tmph: 08/02/11 42 Temporary Parking Lot November 9, 2011 Page 4 4. A maximum number of thirty (30) parking spaces are permitted and each parked vehicle shall display a City- issued placard in a manner such that it is easily visible from the vehicle. 5. The applicant shall fumish and post signs designating the parking area as shown on the site plan as parking by permit only for workers participating in construction projects within the Bayshores Community only. The sign shall be subject to the review and approval of the Community Development Director. 6. The applicant shall fumish and erect a temporary barricade or cones to designate the proposed parking area. The placement of any temporary barricade or cones shall be subject to the review and approval of the Community Development Director. 7. The Limited Term Permit is for the operation of a temporary parking lot and does not authorize the use or operation of construction storage yard or staging area. As such, no construction materials, equipment, or vehicles (i.e., heavy equipment) are permitted on the site. 8. Consistent with Newport Beach Municipal Code Section 10.28.040 (Construction Activity —Noise Regulations), use of the temporary parking lot is limited to the hours of 6:30 AM – 7:00 PM, Monday through Friday and 7:30 AM – 6:30 PM on Saturdays. No temporary parking shall be permitted on Sundays or Federal holidays. 9. To the fullest extent permitted by law, applicant shall indemnify, defend and hold harmless City, its City Council, its boards and commissions, officials, officers, employees, and agents from and against any and all claims, demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever which may arise from or in any manner relate (directly or indirectly) to City's approval of the Temporary Parking Lot including, but not limited to, the XP2011 -006 (PA2011 -158). This indemnification shall include, but not be limited to, damages awarded against the City, if any, costs of suit, attorneys' fees, and other expenses incurred in connection with such claim, action, causes of action, suit or proceeding whether incurred by applicant, City, and /or the parties initiating or bringing such proceeding. The applicant shall indemnify the City for all of City's costs, attorneys' fees, and damages which City incurs in enforcing the indemnification provisions set forth in this condition. The applicant shall pay to the City upon demand any amount owed to the City pursuant to the indemnification requirements prescribed in this condition. PUBLIC NOTICE Notice of this application was mailed to all owners of property within 300 feet of the boundaries of the site (excluding intervening rights -of -way and waterways) including the P1PAs - 2011 \PA2011- 1581PA2011 -158 Actn Lttr.docx Tmpl[ 08/02/11 43 Temporary Parking Lot November 9, 2011 Page 5 applicant and posted on the subject property at least 10 days prior to the decision date, consistent with the provisions of the Municipal Code. APPEAL PERIOD: Limited Term Permit applications do not become effective until 14 days following the date of action. Prior to the effective date the applicant or any interested party may appeal the decision of the Zoning Administrator to the Planning Commission by submitting a written appeal application to the Community Development Director. For additional information on filing an appeal, contact the Planning Division at 949 644 -3200. J 1me Munllo, Zoning Administrator JMlbmz Attachments: ZA 1 Vicinity Map ZA 2 Site Plan P: \PAs - 2011\PA2011- 158 \PA2011.158 Actn Lttr.doex Tmplt: 08/02111 44 Attachment No. ZA 1 Vicinity Map 45 Temporary Parking Lot November 9, 2011 Page 6 VICINITY MAP Limited Term Permit — Greater than 90 days No. XP2011 -006 I9TWO tiQSlee- 100 Dover Drive PAPAS - 2011 \PA2011- 158\PA2011 -15B Actn Lttr.docx Tmplt: 08/0211 l 40 Attachment No. ZA 2 Site Plan 47 I I r 11 of Attachment No. CC 4 Limited Term Permit No. XP2012 -001 49 50 RESOLUTION NO. ZA2012 -008 A RESOLUTION OF THE ZONING ADMINISTRATOR OF THE CITY OF NEWPORT BEACH APPROVING LIMITED TERM PERMIT NO. XP2012 -001 FOR THE MARINER'S POINTE TEMPORARY PARKING LOT LOCATED AT 100 DOVER DRIVE (PA2012 -013) THE ZONING ADMINSTRATOR OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. 1. An application was filed by Kraus Construction, Inc., with respect to property located at 100 Dover Drive, and legally described as Tract 1125, Portion of Lot 1 requesting approval of a Limited Term Permit to utilize the property as an off -site parking lot for construction workers of the Mariner's Pointe project located across Dover Drive at 100 -300 W. Coast Highway. A maximum of 15 parking spaces are proposed for a 12- month period. 2. The subject property is located within the Castaways Marina Planned Community (PC- 37) Zoning District and the General Plan Land Use Element category is CM (Recreation and Marine Commercial). 3. The subject property is located within the Coastal Zone. 4. A public hearing was held on February 29, 2012, in the City Hall Council Chambers, 3300 Newport Boulevard, Newport Beach, California. A notice of time, place and purpose of the meeting was given in accordance with the Newport Beach Municipal Code. Evidence, both written and oral, was presented to, and considered by, the Zoning Administrator at this meeting. SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION. 1. This project has been determined to be categorically exempt under the requirements of the California Environmental Quality Act, pursuant to Section 15304 (Class 4 — Minor Alterations to Land). 2. Class 4 exempts minor temporary uses of land having negligible or no permanent effects on the environment. 3. No improvements other than a temporary barricade or cones and a sign are proposed or permitted on the lot and the surrounding vegetation and environment will be maintained. 151 Zoning Administrator Resolution No. ZA2012 -008 Page 2 of 6 SECTION 3. REQUIRED FINDINGS. 1. In accordance with Section 20.52.040.G (Findings and Decision) of the Newport Beach Municipal Code; the following findings and facts in support of the findings for a Limited Tenn Permit are set forth: Finding A. The operation of the requested limited duration use at the location proposed and within the time period specified would not be detrimental to the harmonious and orderly growth of the City, or endanger, jeopardize, or otherwise constitute a hazard to the public convenience, health, interest, safety, or general welfare of persons residing or working in the neighborhood of the requested limited duration use. Facts in Support of Finding 1. The eastern portion of the property is currently being utilized as a staging area for the City's bay dredging project as well as the Civic Center project. This area is fenced and will not be impacted by the proposed temporary parking lot use. 2. The limited duration use will be a temporary parking lot on the western portion of the property in which no construction staging, storage, or construction vehicles will be permitted as conditioned. 3. Providing a designated parking area for construction worker's vehicles will minimize temporary construction related disturbances to neighboring properties of the Mariner's Pointe project. Finding B. The subject lot is adequate in size and shape to accommodate the limited duration use without material detriment to the use and enjoyment of other properties located adjacent to and in the vicinity of the lot. Facts in Support of Finding 1. The subject lot is approximately four acres in size. Based upon the site plan, there is adequate area to accommodate the proposed limited duration use of a parking area for a maximum of 15 vehicles, in addition to the previously permitted 30 vehicles for the Bayshores Community, as well as the other uses. 2. The lot is bound by Coast Highway to the south and Dover Drive to the west which serve as a buffer between the nearby residential properties within the R -1 (Single -Unit Residential) Zoning District. Tmplt: 03/08/11 152 Zoning Administrator Resolution No. ZA2012 -008 Page 3 of 6 3. The lot is abutting a property to the north within the PC -43 (Upper Castaways) Zoning District currently utilized as a public park and walking trail and to the east is the Newport Harbor. Finding C. The subject lot is adequately served by streets or highways having sufficient width and improvements to accommodate the kind and quantity of traffic that the limited duration use would or could reasonably be expected to generate. Facts in Support of Finding 1. The subject lot has one direct driveway approach taken from northbound Dover Drive. 2. The vehicles would typically access the site early morning prior to peak hour and mid -late afternoon prior to peak hour; therefore, no traffic issues are anticipated. 3. The limited duration use is a temporary parking lot for vehicles of workers participating in construction of the Mariner's Pointe project located directly across Dover Drive at 100 -300 West Coast Highway. Heavy entering- and - exiting traffic is not anticipated. 4. Crosswalks are conveniently located at the signalized intersection at West Coast Highway and Dover Drive ensuring safe access for construction workers between the construction project site and the temporary parking lot. Finding D. Adequate temporary parking to accommodate vehicular traffic to be generated by the limited duration use world be available either on -site or at alternate locations acceptable to the Zoning Administrator. Facts in Support of Finding 1. The intent of this approval is to ensure adequate parking exists for construction workers' personal vehicles of the Mariners Pointe construction project. The proposed limited duration use will alleviate the impact of construction workers' parking personal vehicles on properties adjacent to the Mariners Pointe construction site on along West Coast Highway. Finding E. The limited duration use is consistent with all applicable provisions of the General Plan, any applicable specific plan, Municipal. Code, and other City regulations. TmpIC 03/08/11 153 Zoning Administrator Resolution No. ZA2012 -008 Page 4 of 6 Facts in Support of Finding 1. The CM (Recreation and Marine Commercial) designation of the Land Use Element of the General Plan is intended to provide for commercial development on or near the bay in a manner that will encourage the continuation of coastal - dependent and coastal - related uses, maintain the. marine theme and character, encourage mutually supportive businesses, encourage visitor - serving and recreational uses, and encourage physical and visual access to the bay on waterfront commercial and industrial building sites on or near the bay. The proposed use is of a limited duration and will not impede use of the site consistent with the CM designation. 2. Section IV.B (Permitted Uses) of the PC -37 (Castaways Marina) Planned Community text allows temporary uses as specified within the Zoning Code and the proposed limited duration use is consistent with this designation. 3. The site is not located within a specific plan area. SECTION 4. DECISION. NOW, THEREFORE, BE IT RESOLVED: 1. The Zoning Administrator of the City of Newport Beach hereby approves Limited Term Permit No. XP2012 -001, subject to the conditions set forth in Exhibit A, which is attached hereto and incorporated by reference. 2. Limited Term Permit applications do not become effective until 14 days following the date of action. Prior to the effective date, the applicant or any interested party may appeal the decision of the Zoning Administrator to the Planning Commission by submitting a written appeal application to the Community Development Director. For additional information on filing an appeal, contact the Planning Division at 949 - 644 -3200. PASSED, APPROVED, AND ADOPTED THIS 29T" DAY OF FEBRUARY, 2012. M Tmplt: 03/08/11 154 Zoning Administrator Resolution No. ZA2012 -008 Page 5 of 6 EXHIBIT "A" CONDITIONS OF APPROVAL 1. The development shall be in substantial conformance with the approved site plan except as noted in the following conditions. 2. Anything not specifically approved by this limited term permit is prohibited and must be addressed by a separate and subsequent review. 3. The limited term permit shall expire 12 months from the effective date of this permit, unless an extension of up to one additional period of 12 months is granted by the Zoning Administrator. 4. A maximum number of fifteen (15) parking spaces are permitted and each parked vehicle shall display a City- approved placard in a manner such that it is easily visible from the vehicle. 5. The applicant shall furnish and post signs designating the parking area as shown on the site plan as parking by permit only for workers of the Mariner's Pointe project located at 100 -300 West Coast Highway. The sign shall be subject to the review and approval of the Community Development Director. 6. The applicant shall furnish and erect a temporary barricade or cones to designate the proposed parking area. The placement of any temporary barricade or cones shall be subject to the review and approval of the Community Development Director. 7. The Limited Term Permit is for the operation of a temporary parking lot and does not authorize the use or operation of construction storage yard or staging area. As such, no construction materials, equipment, or vehicles (i.e., heavy equipment) are permitted on the site. 8. No site improvements are permitted with the exception of the temporary barricades, cones, and signage identified in Condition Nos. 5 and 6. 9. Use of the temporary parking lot is limited to the hours between 7:00 a.m. to 5:00 p.m., Monday through Friday. No temporary parking shall be permitted on Saturday, Sundays or Federal holidays. 10. The applicant shall enter into a License Agreement with City prior to use of the property that establishes the terms of use, including duration, fees, indemnification, and insurance. 11. Operators of vehicles utilizing the site shall obey all traffic laws. 12. Workers shall use the crosswalks at the signalized intersection at West Coast Highway and Dover Drive to get to and from the construction site at 100 -300 West Coast Highway. Tmplt: 03/08/11 1515 Zoning Administrator Resolution No. ZA2012 -008 Page 6 of 6 13. The minimum parking area drive aisle shall be 26 feet minimum. 14. To the fullest extent permitted by law, applicant shall indemnify, defend and hold harmless City, its City Council, its boards and commissions, officials, officers, employees, and agents from and against any and all claims, demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever which may arise from or in any manner relate (directly or indirectly) to City's approval of the Mariner' Pointe Temporary Parking Lot including, but not limited to, the XP2012 -001 (PA2012 -013). This indemnification shall include, but not be limited to, damages awarded against the City, if any, costs of suit, attorneys' fees, and other expenses incurred in connection with such claim, action, causes of action, suit or proceeding whether incurred by applicant, City, and /or the parties initiating or bringing such proceeding. The applicant shall indemnify the City for all of City's costs, attorneys' fees, and damages which City incurs in enforcing the indemnification provisions set forth in this condition. The applicant shall pay to the City upon demand any amount owed to the City pursuant to the indemnification requirements prescribed in this condition. TniplC 03108/11 150