HomeMy WebLinkAbout88-33 - Granting a Franchise to the Balboa Island Ferry, IncORDINANCE NO. 88 -33
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
NEWPORT BEACH GRANTING A FRANCHISE TO THE BALBOA
ISLAND FERRY, INC.
The City Council of the City of Newport Beach does hereby
ordain as follows:
Section 1. The City Council finds as follows:
A. The Balboa Island Ferry, Inc., a California
corporation, has made an application for a franchise to continue
operating a toll ferry across Lower Newport Bay between Palm
Street on the Balboa Peninsula and Agate Avenue on Balboa Island;
and
B. The Balboa Island Ferry has operated
continuously for the past fifty (50) years and operated the last
twenty -five years under a franchise last granted by the City
Council in July, 1963; and
C. The City Council has authority, pursuant to the
provisions of Article XIII of the City Charter of the City of
Newport Beach and Section 30900 of the Streets & Highways Code, to
grant a franchise to any person authorizing operation of a toll
ferry; and
D. The proposed ferry would operate wholly within
the boundaries of Newport Beach. The route of the ferry does not
constitute a part of an extension of a state highway, and no part
of the ferry route is within ten (10) miles of a toll bridge in
Aeration, or under construction, over any body of water across
W h ich the ferry is to operate; and
E Th e ro ose d franchise is consistent with the
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various elements of the General Plan of the City of Newport Beach,
the Land Use Plan of the Local Coastal Program, and other
ordinances, policies, and regulations adopted by the City of
Newport Beach; and
F. The franchise
service essentially identical to
the preceding twenty -five (25)
constitute "development" as that
Act; and
authorizes a level of public
that offered by the ferry during
years and, as such, does not
term is defined in the Coastal
G. The City Council has fully complied with the
provisions of the Charter of the City of Newport Beach regarding
the grant of franchises.
IT IS HEREBY ORDAINED that pursuant to the provisions of
Article: XIII of the Charter of the City of Newport Beach and
Section 30900 of the Streets & Highways Code of the State of
California, the City Council hereby declares its intention to
grant a franchise for the operation of a toll ferry to the Balboa
AMAftIsland Ferry Company, Inc. under the following terms and
conditions:
Section 2: Grant of Franchise.
• The City Council of the City
grants to Balboa Island Ferry, Inc.
corporation, a franchise to operate
transportation of passengers, vehicles
Newport Bay between the northerly en
1
of Newport Beach (City)
(Grantee), a California
a toll ferry for the
and freight across Lower
3 of Palm Street on the
Balboa Peninsula and the southerly end of Agate Avenue on Balboa
Island.
Section 3: Term.
The franchise shall commence at 12:00 A.M., November 1,
1988 and expire 11:59 P.M., September 30, 2013.
Section 4: Scope of Operations.
Grantee shall maintain adequate facilities for the
operation of toll ferries and shall operate a sufficient number of
toll ferries to provide reasonable and necessary transportation of
passengers, vehicles and freight from terminal to terminal.
Section 5: Consideration.
Grantee shall pay three (3%) percent of the annual gross
receipts from its operations pursuant to this franchise.
Franchise payments shall be made quarterly within forty -five (45)
days after the end of each calendar quarter, or portion thereof.
Section 6: Gross Receipts Defined.
The term "gross receipts" shall mean the aggregate amount
of all fees and charges for services rendered, whether for cash,
charge or credit, regardless of whether money for the services is
collected or not, and without deduction or allowance for costs,
charges or expenses for the purchase, sale, transportation or
delivery of any merchandise, labor or material used in connection
with the performance of services. The term "gross receipts" shall
also include any subrentals received from subtenants carrying on,
or conducting, a business on any part of portion of the property
leased by City to Grantee, or any payment made to Grantee for the
use of any portion of the leased premises. Gross receipts shall
e reported on the accrual method of accounting and not the cash
ethod.
Section 7: Books of Account.
Grantee shall maintain and keep a full, accurate and
correct account of all of its business carried on and conducted
pursuant to this franchise. These books and records shall include
all documents that would normally be required for examination by
an independent accountant in accordance with generally accepted
auditing practices. The books and records shall be preserved for
at least three (3) years after expiration of the fiscal year to
which the books and records apply. Authorized employees or agents
of City shall have the right to inspect, upon demand and during
reasonable business hours, the books and records required to be
kept pursuant to this section.
Section 8: Liability Insurance.
Grantee shall, prior to the commencement date of this
franchise, furnish City with certificates demonstrating that
Grantee has general liability insurance by the terms of which
Grantee and City are named insureds and are indemnified against
_ liability for damage to property or injury to person (including
death) arising out of, or in any way related to, the grant of this
franchise. The policy, or policies, of insurance shall provide
coverage of at least $500,000 for damage to property and
$5,000,000 for bodily injury to, or death of, one person. The
• policy or policies shall be primary and non - contributing with any
insurance which may be carried by the City. Each policy shall
contain a provision requiring thirty (30) days' written notice be
given to City before the insurance coverage is cancelled or
materially altered. All policies shall be secured from good and
responsible companies, acceptable to City, and authorized and
qualified to do business in the State of California.
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Section 9: Indemnification.
In addition to the obligation of Grantee to obtain
insurance, Grantee shall also indemnify, defend and hold harmless
City, and its officers, employees, agents and representatives,
from and against any and all damage, loss, cause of actions,
obligations, claims, liabilities and demands of whatever nature,
regardless of the merit or outcome of same, that arise out of, or
are in any manner related to, this grant of franchise, provided,
however, the obligation of grantee pursuant to this paragraph
shall not extend to losses, damages, or claims caused by the sole
negligence, fraud or wilful misconduct of the City, or its
officers, employees, agents and representatives.
Section 10: Compliance with Law.
Grantee shall comply with all lawful statutes,
ordinances, rules and regulations adopted by the City Council of
Newport Beach or any other agency having jurisdiction over the
activities authorized by this franchise.
Section 11: Damage to City Property.
Grantee shall pay to City, on demand, the cost of any and
all repairs to public property made necessary by any of the
operations of franchisee pursuant to this franchise.
Section 12: Removal and Relocation.
Grantee shall remove and relocate, without expense to the
City, any facilities installed, used, and maintained under this
franchise and /or any related lease or agreement with the City if:
A. Relocation is required because of any lawful
Change of grade, alignment or width of any public street, way,
alley or place;
B. Relocation is required because of the
construction of any subway of viaduct;
C. Relocation is required because of the repair,
relocation, reconfiguration, or replacement of a bulkhead, public
pier or other structure or facility within the harbor; or
D. The public health, comfort, welfare,
convenience, or safety so demands.
Section 13: Hours of Operation.
The City Council may, by resolution, prohibit or restrict
the operation of toll ferries pursuant to this franchise when
necessary or appropriate to protect the public welfare, peace,
comfort and safety.
Section 14: Right of Acquisition.
The grant of this franchise shall not in any way, or to
any extent, impair or affect the right of the City to acquire the
property of grantee either by purchase or through the exercise of
40 eminent domain and, in the event of acquisition by either means,
this franchise shall have no monetary value.
isSection 15: Rates and Charges.
Grantee shall not adopt or enforce any rates, charges, or
regulations which discriminate in favor of one patron against
another or which discriminate on the basis of any constitutionally
impermissible criteria. Grantee shall not adopt any rates,
charges or regulations which are contrary to, or not authorized
3
by, applicable ordinances, statutes, ru
public entity or agency having jur
operations.
Grantee shall not charge City
on City business for use of the ferry.
Section 16: Charter Compliance.
This franchise is subject to
conditions expressed herein and the term
in Article XIII of the Charter of the Ci
Section 17: Breach /Default.
The occurrence of any one or ms
shall constitute a material default and
A. Failure to make any
franchise when this failure continues
days after written notice of non - compli
B. Failure of grantee to
the covenants, conditions or provisions
such failure continues for a period o
written notice of non - compliance, provi
nature of grantee's default is such ti
days are reasonably required for its cui
be in default if cure is commenced witl
written notice and thereafter diligently
Section 18: Termination.
City or grantee, at their
franchise immediately upon the occur
AMOMLbreach as defined in Section 17.
Section 19: Payments and No
A. Payments.
All rent and other
franchise shall be directed to:
CITY OF NEWPORT BEACH
FINANCE DEPARTMENT
3300 Newport Boulevard
P.O. Box 1768
es or regulations of any
sdiction over grantee's
or City employees
all of the terms and
and conditions specified
of Newport Beach.
of the following events
:ach of this franchise:
yment required by this
r a period of ten (10)
a;
observe or perform any of
of this franchise where
twenty (20) days after
ed, however, that if the
it more than twenty (20)
s, then grantee shall not
.n twenty (20) days after
pursued to completion.
Newport Beach, CA 92658 -8915
or at such other place as City
writing.
B. Notices.
Any notice required p
shall be deemed given when personally d
City or Grantee or when deposited in the
class, postage prepaid, and addressed as
Newport Beach, CA 92658 -89
2
on, may terminate this
of a material default or
payable pursuant to this
hereafter designate in
irsuant to this franchise
elivered to an officer of
United States mail, first
follows:
L5
CITY:
CITY OF NEWPORT BEACH
CITY MANAGER
3300 Newport Boulevard
P.O. Box 1768
•
Newport Beach, CA 92658 -89
2
on, may terminate this
of a material default or
payable pursuant to this
hereafter designate in
irsuant to this franchise
elivered to an officer of
United States mail, first
follows:
L5
GRANTEE:
BALBOA ISLAND FERRY, INC.
410 South Bay Front
Balboa Island, CA 92660
Section 20: The City Clerk
published once in the official newsp:
after its adoption.
11 cause the same to be
within fifteen (15) days
Section 21: This Ordinance was introduced at a regular
meeting of the City Council of the CitylOf Newport Beach held on
the 12th day of September, 1988, and adopted on the 26th day of
September, 1988, by the following vote, to -wit:
AYES, Turner
NOES,
ABSENT
ATTEST:
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