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Home My WebLink About06/17/1963! • CITY OF NEWPORT BEACH CITY ATTORNEY DEPARTMENT Toe The Honorable Mayor and City Council From: City Attorney June 14, 1963X,,:,_ ,,Ll .zn„ , F, c'.wti.�i -..14 Cz Subject: Procedure for granting a franchise to operate the ferry The City Council has requested that the procedure be outlined for the granting of a franchise to operate a toll ferry between Balboa and Balboa Island, A. B. 1609 has been signed by the Governor and is now law. This bill adds Article 4 to Chapter 3 of Division 17 of the Streets and Highways Code and delegates the power to grant a franchise for a toll ferry to the legislative body of the city when certain con- ditions exist. The conditions set out in the bill do exist in Newport Beach and the Council is, therefore, authorized to grant a franchise. This bill requires a finding by the Director of Public Works of the State that no toll bridge is planned or con- templated in a location where the proposed ferry would compete with it. I have written a letter to the Director requesting that such a finding be made. Article XIII of the Newport Beach Charter sets out the procedure under which the City Council may grant a franchise. A resolution of intention must be adopted by the City Council declaring its intention to grant a franchise and must set out the day, hour and place when and where persons having an. interest in or any objec- tion to the granting of the franchise may appear and be heard. The resolution must be published at least once and at least ten days prior to the date of the hearing. The resolution must set out the terms and conditions upon which the Council proposes to grant the franchise. After the hearing, the City Council may grant the franchise by ordinance. The terms and conditions under which it is granted must be the same as those set out in the resolution. If changes are made, a new resolution of intention must be adopted and similar proceedings taken. The Charter sets out some additional conditions which apply to any franchise granted and provides that the grantee by the acceptance of the franchise agrees to perform and be bound by the terms and condi- tions of the grant and by the provisions set out in the Charter. The Charter requires acceptance of the franchise by the grantee 0 0 Toe The Honorable Mayor and City Council -2- June 14, 1963 and that such acceptance be filed within ten days after the adop- tion of the ordinance granting the franchise. However, this time may be extended by the City Council. The possible timing on the franchise for the ferry would be: 1. On June 24, 1963, the City Council adopts the resolution of intention setting the date of hearing on July 8, 1963. 2. The resolution of intention is published on June 27. 3, The hearing is held on July 8, 1963, and the Council then determines whether the franchise should be granted. It would seem to be appropriate to adopt such an ordinance as an urgency measure and make the same effective immediately inasmuch as the interruption of the service may affect the public peace, health or safety. If adopted as an urgency measure, the Council would have to declare the reasons for the urgency in the ordinance. The question has been raised as to whether or not it is necessary to call for bids in granting a franchise for the operation of a toll ferry. It is my conclusion that such bidding is not necessary. The basis for the conclusion is as follows- Newport Beach is a charter city and the Charter sets out the procedure for granting a franchise. The courts have concluded that such procedure is a municipal affair and, where a charter sets out the procedure for the city council to act upon a franchise, the general law does not apply. In Cit o£ San Die o v. 'rckhoff (1920), 49 Cal. App. 473, 480, the court o serve t t t e municipal charter of San Diego covered the subject of granting franchises for street railroads at the time the grant was made. The court then stated that street railroads being a municipal affair the charter provisions con- trolled over the Broughton Act. In CitX of San Die o v. Southern etc. Tele hone Cor (1954), 42 Cal. , tile court o serve t at�tie c rter o the City of San Diego did not provide a pro- cedure for the granting of a franchise to a telephone company and the court concluded that the Broughton Act was, therefore, appli- cable. The Broughton Act is a state law appearing in Sections 6001, et seq., of the Public Utilities Code. It sets out an elaborate procedure for granting franchises by the legislative body of counties and cities. It requires competitive bidding, extensive advertising requirements, and a deposit with an appli- cation for a franchise, and authorizes the requirement for a bond to guarantee performance. This Act would be applicable if Newport Beach were not a charter city or if the Charter did not provide a procedure for granting franchises. 0 0 Too The Honorable Mayor and City Council -3- June 14, 1963 A recent case, Mann v. Ciit of Bakersfield (1961), 192 Cal. App. 2d 424, observes =fiaf`ti EFori y o ie city council of a chartered city to grant a franchise to lay and maintain railroad tracks upon its streets is measured by the charter. It should be pointed out that the Newport Beach Charter also au- thorizes the City Council to adopt a procedural ordinance setting out additional terms and conditions for the granting of franchises. We do not have such an ordinance and it does not appear to be presently necessary inasmuch as the Charter itself contains a comprehensive procedure to follow. If the City Council felt it necessary to call for bids in grant- ing a franchise for the ferry, it would be possible to revise the proposed procedure and do so. Enclosed is a draft of a proposed resolution which could be adopted on June 24, 1963. This draft was prepared in anticipation of Balboa Island Ferry's making an application for a franchise. It may develop that some revision of the resolution will be necessary before the 24th. This memo and the draft of the resolution are being transmitted to the City Council on Friday, June 14, in order that the members of the Council will have an opportunity to review it prior to the meeting on June 17 and direct any changes that appear necessary. �rl Walter W. WWCamec City Attor Enc. cc - City Manager City Clerk _ .... N 11 II. Y Jell CITY OF NEWPORT BEACH - OFFICE OF T14E CITY ATTORNEY SUMMARY OF CITY'S BEEK - FERRY TERMINALS LEASE GENERAL INFORMATION Parties to Lease City of Newport Beach, Lessor J. A. Beek, Lessee Date of Lease May 16, 1938 City Council approval Original lease 1345 Res. No. P ?9t ._.a ;fT.! Land Location 2 Parcels - Agate Ave. on B. I. and Palm Ave, on Peninsula J . Source of City's Title Tidelands FrMiW Appr#imate Area Water Street Agate Ave, 7,353.50 Sq. Ft, 147.071 40.00' Palm St. 3,000.00 Sq. Ft. 50.001 50.001 LEASE DURATION III. LEASE PROVISIONS No. years.: 25 FrQ Jtln�e, 1938Y to May 31,, 1963. h 7- 7_ -_N1 Rental: $15.00 per year. Lessee to constru ,raitin rooms on leased property. a D 10 5 Purpose: Construction and maintenanc of do ways, boat landings, ferry slips, waiting rooms d other appur- tenances, for the purpose of commerce and navigation. Lessor given right to use docks or landings upon com- pensating Lessee. Repairs: No provision, except Lessor to maintain comfort-station and furnish janitor service for same in the waiting room looted on pier at end of Agate Avenue for use thereof for public purposes. Assignability: No provision. Renewal. No provision. Terms of default: No provision. Taxes: No provision. Insurance: No provision. v� i ) f (P