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HomeMy WebLinkAbout17 - Regulations on Water-Propelled VesselsTO: FROM: PREPARED BY: PHONE: TITLE: ABSTRACT: CTY OF Fti NEWPORT BEACH City Council Staff Report May 12, 2015 Agenda Item No. 17 HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL David A. Webb, Public Works Director- (949) 644 -3330, dawebb @newportbeachca.gov Shannon Levin, Harbor Analyst (949) 644 -3041 Regulations on Water - Propelled Vessels in Newport Harbor At the direction of City Council, the Harbor Commission studied water - propelled vessels in Newport Harbor. Noting concerns for safety, noise, and speed of vessels, the City Council met in a Study Session in February 2015, and asked City staff to bring back an Ordinance and Policy that would prohibit all private operations of water - propelled vessels, but would allow one operator within the Harbor, as selected by a competitive process. At the April 28, 2015 regular meeting, the "one commercial operator" concept was not adopted. Three Council members instead asked to bring back an ordinance that would prohibit all water - propelled vessel operations in the Harbor. Any change to the Municipal Code requires four affirmative votes. Staff has prepared what the three members requested along with an alternate concept in case an outright ban on all operations doesn't receive four votes. RECOMMENDATION: a) Introduce Ordinance No. 2015 -13, An Ordinance of the City Council of the City of Newport Beach, California, Prohibiting the Operation of Vessels Propelled by Water Above the Surface of Newport Harbor, amending Newport Beach Municipal Code Section 17.20.060, and pass to second reading on May 26, 2015; or b) Provide other direction to staff. FUNDING REQUIREMENTS: There are no funding requirements associated with this item. DISCUSSION: Newport Harbor is considered one of the largest small craft, recreational harbors in the United States. With 21 miles of shoreline, thousands of vessels occupy water space at residential piers, commercial marinas and through an extensive network of mooring fields (Attachment A). Additionally, Newport Harbor is a 17 -1 regional recreational hub for stand -up paddling, kayaking, sailing, and similar harbor uses Water - propelled vessels operate above the surface of the water and are commonly referred to as jetpack, jetlev, flyboard, aquaflyer, aquaboard, etc. Typically, as with the jetpack, the user wears a shoulder pack which is connected to a personal watercraft type vessel. The modified vessel pumps water up to the user's pack through a long tube where water is forced down at a high velocity, thereby creating lift raising the user above the surface of the water (Attachment B). There are other types of water - propelled vessels that involve boards upon which the operator stands, or frames upon which the rider sits, much like a motorcycle. As water - propelled vessel operation is an emerging activity, the innovations are constantly evolving. Newport Harbor currently has one commercial business, Jetpack America which is based out of the Rhine Channel and operates under an approved Marine Activities Permit ( "MAP "). Jetpack America appears to be a popular visitor experience in Newport Harbor. Visitors, residents, and spectators enjoy the experience, yet staff has received complaints from residents and boaters living in and recreating around Newport Harbor regarding noise, exhaust, wake and speed related to the activity. To ensure the health, safety and welfare of residents and visitors to Newport Harbor, staff has restricted the current, approved operator to the open channel areas only. The water - propelled vessel business is relatively new and there is a lack of information regarding safety and operational characteristics. The Coast Guard is currently partnering with Jetpack America to study this activity. Development of safety protocols and classification (s) is forthcoming. Staff has received multiple inquiries to establish new commercial water - propelled vessel operations in the harbor. Given the growing popularity of the activity, it is anticipated the City will continue to be a destination for such businesses. To allow the study of the issues and operations, City Council adopted Urgency Ordinance 2014 -11 establishing the temporary prohibition of issuing new MAPs to persons or businesses engaged in operations of water - propelled vessels. The Urgency Ordinance expired in December 2014. Then the City Council asked the Harbor Commission to evaluate the issue. The Committee held numerous public meetings soliciting input from residents, businesses, and other public participants. The Committee identified specific factors for consideration: noise, safety, wake, speed, commercial vs. private ownership and operation, and effects on other harbor users. The Committee recommended to the Harbor Commission that all water - propelled vessels, both private and commercial, be prohibited in the harbor. The Harbor Commission approved the recommendation and forwarded that to City Council via a February 2015 Study Session presentation. Citing the concerns of noise, wake, speed, etc., the Commission recommended that the City Council adopt a Resolution to prohibit all water - propelled vessel activity within the Harbor. At the February 2015 Study Session, a majority of the Council at that time indicated its preference that privately- operated water - propelled vessels be prohibited in the Harbor, but that one commercial operator could effectively be allowed to operate in the Harbor under a permit, contract or lease that would follow a competitive Request for Proposals ( "RFP ") process. But at the April 28„ 2015 regular meeting, the members voting rejected that idea. Staff asked the five Council members on the dais at the time what they would prefer to bring back, and three of the five suggested an ordinance change that would ban both commercial and private use and operations of water - propelled vessels in Newport Harbor. Ordinance 2015 -_ (Attachment C) amends Newport Beach Municipal Code ( "NBMC ") Section 17.20.060 (Attachment D) to reflect an outright ban on water - propelled vessels in the Harbor. If approved at the first reading, a second reading for the Ordinance will occur on May 26, 2015. Jetpack America is currently permitted to operate in Newport Harbor through an approved MAP which will expire on May 21, 2015. After that date, Jetpack America will be required to comply with the City's municipal code. An Alternative Path. Staff cannot presuppose what a majority of the City Council will do. If various alternatives to change the Municipal Code receive no more than 3 votes, the status quo would prevail. To staff, the status quo is less than ideal, as it would allow an unlimited number of commercial and non- 17 -2 commercial water - propelled vessels in the Harbor. Additionally, only the commercial operators would be required to get a MAP. The City would be obligated to issue new MAPs to those who request them, as to not do so may be construed as a de facto moratorium. Staff notes the major concerns with commercial operators — primarily noise and safety — and includes this alternative path should the Council choose not to adopt an outright ban on commercial water - propelled vessels. The alternative is as follows: 1. Non - commercial use would be banned entirely in the Harbor; and 2. One commercial operator would be allowed in the Harbor on a year -to -year revocable permit. The permit would: a. State the operator's use area — in this case, an area limited to the Turning Basin between Lido Marina Village and the PCH area; b. Set forth hours and days of operation; c. Require that the operator certify to a level of insurance directed by our Risk Management division; d. Require the operator to indemnify and hold the City harmless for any injury or lawsuit; e. Be adopted only by the City Council at a publicly- noticed regular meeting; f. Allow the City's Harbor Resources Manager or his /her designee to revoke the permit for health or safety reasons at any time; g. Include any other protections that the City deems fit. Some of the Municipal Code changes that could be adopted under this path are shown as Attachment E. Jetpack America's "operations plan" is shown as Attachment H. One "Concession Location" identified in the Plan is the Turning Basin, which is Map b -1 of Attachment H. ENVIRONMENTAL REVIEW: Staff recommends the City Council find the approval of this ordinance and Council Policy exempt from the California Environmental Quality Act ( "CEQA ") pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. Alternatively, the City Council finds the approval of this ordinance is not a project under CEQA Regulation Section 15061(b)(3) because it has no potential for causing a significant effect on the environment. NOTICING: 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). ATTACHMENTS: Description Attachment A - Newport Harbor Vicinity Map Attachment B - Photos of Water Propelled Vessels Attachment C - Ordinance Attachment D - Newport Beach Municipal Code 17.20.060 Redline Attachment E - Alternative Ordinance 2015- Allowing One Commercial Operator Attachment F - Newport Beach Municipal Code Sections 17.10 and 17.20 Redline 17 -3 Attachment G - Public Comments Submitted to the Record Attachment H - Sample Jetpack AmericaOperations Plan 17 -4 ATTACHMENTA NEWPORT HARBOR VICINITY MAP CITY OF NEWPORT BEACH HARBOR RESOURCES DIVISION 05/12/2015 17 -5 ATTACHMENT B _ s r 17 -6 17-7 ATTACHMENT C ORDINANCE NO. 2015 - AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, CALIFORNIA PROHIBITING THE OPERATION OF VESSELS PROPELLED BY WATER ABOVE THE SURFACE OF NEWPORT HARBOR WHEREAS, Section 200 of the Charter of the City of Newport Beach ( "City ") vests the City Council with the authority to make and enforce all laws, rules and regulations with respect to municipal affairs subject only to the restrictions and limitations contained in the Charter and the State Constitutions, and the power to exercise, or act pursuant to any and all rights, powers, and privileges, or procedures granted or prescribed by any law of the State of California; WHEREAS, Newport Harbor is one of the largest recreational small craft harbors in the United States, and its waters and shoreline support a wide variety of commercial, recreational and residential uses, and scenic and biological resources; WHEREAS, the City's Harbor Resources Division has received inquiries and Marine Activities Permit applications in the past from persons and businesses desiring to establish water propulsion vessel operations within Newport Harbor; WHEREAS, Newport Harbor currently has one (1) commercial business operating a water propulsion vessel business out of the Rhine Channel. Water propulsion vessels operate above the surface of the water and are commonly referred to as Jetlev, Jetpack, Flyboard, Aquaflyer, Aquaboard, etc. The vessels operate by sucking water up to the user through a long hose connected to a modified personal water craft, and then redirecting the water at a high velocity back towards the water surface, which provides lift to raise a user above the surface of the water; WHEREAS, City staff has received complaints from residents living around Newport Harbor regarding noise, exhaust, wake and speed violations related to water propulsion vessels; WHEREAS, the water propulsion vessel business is relatively new and there is a lack of information regarding their safety and operational characteristics. The Coast Guard is currently studying this activity, and has yet to develop safety protocols. To ensure the health, safety and welfare of residents and visitors in Newport Harbor, City staff has restricted the single current water propulsion vessel operator in Newport Harbor to the main channel areas; 17 -8 WHEREAS, there is a distinct lack of available space to accommodate water propulsion vessels in the channels. Given the unique operational characteristics of water propulsion vessels (e.g., separate vessels for power and for holding the user as well as a third vessel for staging, staff and loading purposes), they have the potential to impact access to navigational channels and could, if used improperly, endanger users as well as other persons within and around Newport Harbor; WHEREAS, the City Council adopted urgency Ordinance No. 2014 -11 on June 24, 2014 establishing a six (6) month temporary prohibition on the issuance of Marine Activities Permits to persons and businesses desiring to establish water propulsion vessel operations within Newport Harbor; WHEREAS, during the time the temporary prohibition was in place, City staff, a Harbor Commission ad hoc committee, and the Harbor Commission held numerous public meetings where they solicited testimony, experiences, and feedback regarding the compatibility of water propulsion vessel operations with other uses in Newport Harbor; WHEREAS, the Harbor Commission concluded that the public's concerns were predominantly related to noise and safety, and that because some of the operators are inexperienced, there is potential for accident and injury. Thus, the Harbor Commission based upon all of the evidence presented to it recommended the City Council prohibit the operation of vessels propelled by water above the surface of Newport Harbor; WHEREAS, the City intends that the health, safety and welfare of those who use, enjoy and own property near Newport Harbor are not adversely affected by commercial activities conducted on those waters; and WHEREAS, the City desires to prohibit the operation of vessels propelled by water above the surface of Newport Harbor by private recreational users and businesses to ensure the health, safety and welfare of the public and the compatibility of uses within Newport Harbor. NOW THEREFORE, the City Council of the City of Newport Beach ordains as follows: Section 1: The City Council hereby amends Newport Beach Municipal Code Section 17.20.060 to read as follows: 17.20.060 Air and Water Propulsion Vessels Prohibited. 1►] 17 -9 A. No person shall operate any vessel on the waters of Newport Harbor if the vessel is powered or maneuvered by means of mechanical air or water propulsion above the surface of the water. B. The provisions of this section do not apply to the operation of any vessel by any public agency or any person responding to an emergency on behalf of any public agency. Section 2: The recitals provided above are true and correct and are incorporated into the substantive portion of this ordinance. Section 3: If any section, subsection, sentence, clause or phrase of this ordinance is, for any reason, held to be invalid or unconstitutional, such decision shall not affect the validity or constitutionality of the remaining portions of this ordinance. The City Council hereby declares that it would have passed this ordinance, and each section, subsection, sentence, clause or phrase.hereof, irrespective of the fact that any one (1) or more sections, subsections, sentences, clauses or phrases be declared unconstitutional. Section 4: The City Council finds the approval of this ordinance is not subject to the California Environmental Quality Act ( "CEQA ") pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. Alternatively, the City Council finds the approval of this ordinance is not a project under CEQA Regulation Section 15061(b)(3) because it has no potential for causing a significant effect on the environment. Section 5: The Mayor shall sign and the City Clerk shall attest to the passage of this ordinance. The City Clerk shall cause this ordinance, or a summary thereof, to be published pursuant to Charter Section 414. This ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach, held on the — day of , 2015, and adopted at a regular meeting of the City Council of Newport Beach, held on the _ day of , 2015, by the following vote, to wit: AYES, COUNCILMEMBERS 3 17 -10 NOES, COUNCILMEMBERS ABSENT COUNCILMEMBERS EDWARD D. SELICH, MAYOR APPROVED AS TO FORM: THE CITY 7RNEY'S OFFICE -- X (- ( (-dr AARO C. HARP, CITY ATTORNEY ATTEST: LEILANI I. BROWN. CITY CLERK El 17 -11 ATTACHMENT D Redline Draft of NBMC Section 17.20.060 17.20.060 Air and Water Propulsion Vessels Prohibited. A. No person shall operate any vessel on the waters of Newport Harbor if the vessel is powered or maneuvered by means of mechanical air or water propulsion above the surface of the water. B. The provisions of this section do not apply to the operation of any vessel by any public agency or any person responding to an emergency on behalf of any public agency. 17 -12 ATTACHMENT E ORDINANCE NO. 2015 - AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, CALIFORNIA REGULATING AND LIMITING THE OPERATION OF VESSELS PROPELLED BY WATER ABOVE THE SURFACE OF NEWPORT HARBOR WHEREAS, Section 200 of the Charter of the City of Newport Beach ( "City ") vests the City Council with the authority to make and enforce all laws, rules and regulations with respect to municipal affairs subject only to the restrictions and limitations contained in the Charter and the State Constitutions, and the power to exercise, or act pursuant to any and all rights, powers, and privileges, or procedures granted or prescribed by any law of the State of California; WHEREAS, Newport Harbor is one of the largest, recreational, small craft harbors in the United States, and its waters and shoreline support a wide variety of commercial, recreational and residential uses, and scenic and biological resources; WHEREAS, the City's Harbor Resources Division has received inquiries and Marine Activities Permit applications in the past from persons and businesses desiring to establish water propulsion vessel operations within Newport Harbor; WHEREAS, Newport Harbor currently has one (1) commercial business operating a water propulsion vessel business out of the Rhine Channel. Water propulsion vessels operate above the surface of the water and are commonly referred to as Jetlev, Jetpack, Flyboard, Aquaflyer, Aquaboard, etc. The vessels operate by sucking water up to the user through a long hose connected to a modified personal water craft, and then redirecting the water at a high velocity back towards the water surface, which provides lift to raise a user above the surface of the water; WHEREAS, City staff has received complaints from residents living around Newport Harbor regarding noise, exhaust, wake and speed violations related to water propulsion vessels; WHEREAS, the water propulsion vessel business is relatively new and there is a lack of information regarding their safety and operational characteristics. The Coast Guard is currently studying this activity, and has yet to develop safety protocols. To ensure the health, safety and welfare of residents and visitors in Newport Harbor, City staff has restricted the current water propulsion vessel operations to the main channel areas; 17 -13 WHEREAS, there is a distinct lack of available space to accommodate multiple water propulsion vessels in the channels. Given the unique operational characteristics of water propulsion vessels (e.g., separate vessels for power and for holding the user as well as a third vessel for staging, staff and loading purposes), they have the potential to impact access to navigational channels and could endanger users as well as other persons within and around Newport Harbor; WHEREAS, the City Council adopted urgency Ordinance No. 2014 -11 on June 24, 2014 establishing a six (6) month temporary prohibition on the issuance of Marine Activities Permits to persons and businesses desiring to establish water propulsion vessel operations within Newport Harbor; WHEREAS, during the time the temporary prohibition was in place, City staff, a Harbor Commission ad hoc committee, and the Harbor Commission held numerous public meetings where they solicited testimony, experiences, and feedback regarding the compatibility of water propulsion vessel operations with other uses in Newport Harbor; WHEREAS, the Harbor Commission concluded that the public's concerns were predominantly related to noise and safety, and that because most of the operators are inexperienced, there is a greater potential for accidents and injury. In addition, because the goal is to fly high and fast, both commercial and private operation could regularly violate speed restrictions without proper regulations in place; and WHEREAS, the City desires to regulate the operation of vessels propelled by water above the surface of Newport Harbor by private recreational users and businesses to ensure the health, safety and welfare of the public and the compatibility of uses within Newport Harbor. NOW THEREFORE, the City Council of the City of Newport Beach ordains as follows: Section 1: The City Council hereby amends Newport Beach Municipal Code Section 17.20.060 to read as follows: 17.10.030 Application for Permit. An application for permit under this chapter shall be filed with the Harbor Resources Manager, upon forms provided by the City, and shall contain such information which the Harbor Commission, Harbor Resources Manager, or City Council may require. 2 17 -14 17.10.050 Issuance of Permit. Upon receipt of a complete application for a marine activities permit, the Harbor Resources Manager shall investigate the information contained in the application. The Harbor Resources Manager shall refer the application to the Community Development Department to verify that all of the applicable Zoning Code regulations or conditions have been addressed or complied with and the Public Works Department to ensure safe vehicular ingress and egress, and the safe loading and unloading of passengers and supplies. The Harbor Resources Manager may also refer the application to the Harbor Commission, other appropriate City departments, or to the Orange County Sheriff's Harbor Patrol /Marine Operations Bureau for investigation, report or recommendation. The Harbor Resources Manager may inspect, or cause to be inspected, the vessel(s), marine sanitation device(s) of the vessel(s), boarding facilities, parking and all upland support facilities listed in the application. If the application is for a vessel that is powered or maneuvered by means of mechanical air or water propulsion above Newport Harbor's water surface, the Harbor Resources Manager shall refer the application to the City Council for consideration. The City Council may refer the application to the Harbor Commission for initial review and a recommendation to approve, modify, or deny. If the application is for any other vessel, the Harbor Resources Manager shall notify an applicant of his or her decision in writing within ninety (90) days from the date on which a completed application is received. Except as provided in this section, the Harbor Resources Manager or the City Council may issue the marine activities permit upon a determination that approval of the application will not adversely affect the health, safety or welfare of those who use, enjoy, or own property near Newport Harbor. The Harbor Resources Manager or the City Council may approve the application unless: A. The proposed commercial activity is likely to create noise which would adversely affect use or enjoyment of the waters of Newport Harbor by members of the public, or interfere with the rights of those who own property near the waters of Newport Harbor to the peaceful and quiet enjoyment of that property; 3 17 -15 B. The proposed commercial activity is likely to contribute to the problem of water pollution and /or litter in the waters of Newport Harbor; C. The vessel or craft to be used by the applicant does not satisfy the applicable standards of the United States Coast Guard, or City, County, State or Federal requirements of law; D. The proposed commercial activity is likely, when viewed in conjunction with other anticipated charters and marine operations, to create a hazard to safe navigation, or otherwise interfere with the rights of others to use the waters of Newport Harbor; E. The proposed commercial activity does not provide facilities to ensure adequate parking, safe vehicular ingress and egress, and the safe loading and unloading of passengers and supplies for the period subject to permit. For the purpose of this section, parking shall not be considered adequate unless the number of parking spaces required by Title 20 of this Code are provided for the duration of the permit and will be available during the days and hours of operation specified by the permit and that any off -site parking arrangements have been approved by the Planning Commission or the Community Development Director; F. The commercial activity would violate City, County, State or Federal requirements of law; G. The applicant has misrepresented material facts in the application; H. The proposed commercial activity does not provide uplands support, docking or boarding facilities sufficient to safely accommodate the size of vessel(s) or number of passengers indicated on the application; I. The proposed commercial activity includes an upland use that requires a use permit or other approval under the City Zoning Code and such permit has not been obtained; I The applicant has a permit which is currently suspended or has been revoked, or a notice of revocation or suspension that is no longer subject to appeal has been issued within the past ninety (90) days. 0 17 -16 Subsection 17.10.070(A) Power to Impose Conditions —Hold Harmless. A. In granting any permit pursuant to this chapter, the Harbor Resources Manager, the City Council, or the Harbor Commission on appeal, may impose any additional conditions on the permit to ensure that the proposed commercial activity will be compatible with the predominantly recreational character of Newport Harbor, the rights of other persons using Newport Harbor, the interests of residents and property owners whose properties abut or are in close proximity to Newport Harbor, and the interests of the general public. Any such permit shall contain a provision stating that the permittee shall defend, indemnify and hold the City and the County of Orange harmless from any claim for damages, penalties or fines arising out of the exercise of the permit; or the activities of the permittee carried on under the authority of such permit. The Harbor Resources Manager, the City Council, or Harbor Commission, on approval or review, shall have the power to impose new conditions or modify existing conditions with regard to any permit issued pursuant to this chapter upon a determination that the operations by the permittee, in the absence of the new or modified conditions, may adversely impact the health, safety or welfare of those who use, enjoy or own property near or on the waters of Newport Harbor. 17.10.080 Duration of Permit. Unless otherwise specified, a permit issued pursuant to this chapter shall be valid for twelve (12) months from the date of issuance, unless terminated or revoked prior. The Harbor Resources Manager or the City Council may issue a permit for a shorter duration, provided the applicant meets all the requirements of this chapter for the duration of the period remitted. 17.10.090 Suspension /Revocation. Any permit granted pursuant to the provisions of this chapter may be suspended or revoked by the Harbor Resources Manager or the City Council, in whole or in part, upon fifteen (15) days' prior N7 17 -17 written notice to the permittee, served in accordance with Section 1.05.030 of the Code, directing the permittee to appear at the time, date and place specified in the notice to show cause why the permit shall not be suspended or revoked. The notice shall specify the reasons for the proposed action. A permit may be suspended or revoked on any of the following grounds: A. That the permit holder has made a misrepresentation as to any material fact set forth in the application; B. For violation of any law, rule, condition of permit or regulation of the United States, the United States Coast Guard, the State of California, the City of Newport Beach, or the County of Orange relating to the commercial activities authorized by any permit issued pursuant to this chapter; C. That the commercial activities of permittee adversely affect the health, safety or welfare of those who use, enjoy or own upland property in Newport Harbor; D. That the commercial activities of permittee fall within the criteria for denial of an application, as set forth in subsections (A) through (J) of Section 17.10.050; E. The permittee has discharged or has permitted or allowed any other person on a vessel operating under the permit to discharge any human or animal excreta from any head, toilet, holding tank or similar facility into the waters of Newport Harbor; F. Failure to continuously maintain insurance in the appropriate coverage and amounts. 17.10.095 Appeal. Appeals of any decision of the Harbor Resources Manager shall be made in accordance with or Chapter 17.60 or Chapter 17.65, as applicable. Decisions of the City Council under this Chapter shall be final. 17.10.100 Transfer of Permit. No permit issued pursuant to the provisions of this chapter shall be transferable either by assignment, sale, hypothecation, and operation of law or otherwise without permission of the Harbor Commission, or the City Council if the permit is issued by the City Council, having first been obtained. Application for transfer of any permit shall be subject to the same terms, conditions and requirements as an application for an original permit. In approving C. 17 -18 the transfer of any existing permit, the Harbor Commission or the City Council may impose such conditions as it may determine are in the public interest. 17.10.120 Application to Existing Commercial Activities. The commercial activities of those holding valid permits issued prior to the effective date of this chapter (March 24, 2006) may be continued to the extent authorized by the prior permit, provided the previously approved commercial activity shall not be increased or expanded beyond the activities conducted as of March 24, 2006, the effective date of this chapter, adopted by Ordinance No. 2006 -3 § 2 (part). The holder of a permit issued under Chapter 17.41 (repealed effective March, 2006) shall apply for a renewal of the permit issued under Chapter 17.41 as required by this chapter on or before December 1, 2008, and shall be issued a permit under this chapter to operate under the previously approved conditions and any condition of this chapter not inconsistent with the operations and activities authorized under the previously issued permit. All marine activities permits issued under this section shall be deemed to meet the requirements of Chapter 17.10 for renewal purposes unless or until such time as the Harbor Resources Manager, the City Council, or the Harbor Commission determines there is a substantial change in the commercial activity. A substantial change may include, but is not limited to, the following: A. An increase in or expansion of the operational characteristics of the commercial activity; B. Change in the vessel(s) authorized to operate under the terms of the permit, which change results in an increase in size or capacity of the vessel; C. Change in the maximum number of patrons or passengers authorized to participate in the commercial harbor activity on an authorized vessel; D. Change in the approved off - street parking agreement(s), or loss of parking provided prior to the effective date of the ordinance codified in this title; E. Change in the physical condition of the dock, gangway or pilings that would compromise the safety of the patrons or passengers; F. Change in the location where the vessel(s) is berthed and /or loads and unloads patrons or passengers and /or provisions for the commercial activity; 7 17 -19 G. Change in the approved route of travel; H. Failure to correct a violation of the standard conditions imposed pursuant to Section 17.10.070(B). 17.20.060 Air and Water Propulsion Vessels Prohibited. A. No person shall operate any vessel on the waters of Newport Harbor if the vessel is powered or maneuvered by means of mechanical air or water propulsion above the surface of the water. B. The provisions of this section do not apply to the operation of any vessel by any public agency, any person responding to an emergency on behalf of any public agency, or any person authorized under a permit issued by the City Council to operate a vessel that is powered or maneuvered by means of mechanical air or water propulsion above Newport Harbor's water surface. Section 2: The recitals provided above are true and correct and are incorporated into the substantive portion of this ordinance. Section 3: If any section, subsection, sentence, clause or phrase of this ordinance is, for any reason, held to be invalid or unconstitutional, such decision shall not affect the validity or constitutionality of the remaining portions of this ordinance. The City Council hereby declares that it would have passed this ordinance, and each section, subsection, sentence, clause or phrase hereof, irrespective of the fact that any one (1) or more sections, subsections, sentences, clauses or phrases be declared unconstitutional. Section 4: The City Council finds the approval of this ordinance is not subject to the California Environmental Quality Act ( "CEQA ") pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. Alternatively, the City Council finds the approval of this ordinance is not a project under CEQA Regulation Section 15061(b)(3) because it has no potential for causing a significant effect on the environment. Section 5: The Mayor shall sign and the City Clerk shall attest to the passage of this ordinance. The City Clerk shall cause this ordinance, or a summary thereof, to be published pursuant to Charter Section 414. E:3 17 -20 This ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach, held on the day of , 2015, and adopted at a regular meeting of the City Council of Newport Beach, held on the day of , 2015, by the following vote, to wit: 1►[01�OWK41J41► [NI ULYAIWdil -.]AZ 1 ABSENT COUNCILMEMBERS EDWARD D. SELICH, MAYOR APPROVED AS TO FORM: THE CITY ATTORNEY'S OFFICE AARON C. HARP, CITY ATTORNEY ATTEST: LEILANI I. BROWN, CITY CLERK 0 17 -21 ATTACHMENT Redline Draft of Alternative NBMC Sections 17.10.030 Application for Permit. An application for permit under this chapter shall be filed with the Harbor Resources Manager, upon forms provided by the City, and shall contain such information which the Harbor Commissioner Harbor Resources Manager, or City Council may require. 17.10.050 Issuance of Permit. Upon receipt of a complete application for a marine activities permit, the Harbor Resources Manager shall investigate the information contained in the application. The Harbor Resources Manager shall refer the application to the Community Development Department to verify that all of the applicable Zoning Code regulations or conditions have been addressed or complied with and the Public Works Department to ensure safe vehicular ingress and egress, and the safe loading and unloading of passengers and supplies. The Harbor Resources Manager may also refer the application to the Harbor Commission, other appropriate City departments, or to the Orange County Sheriff's Harbor Patrol /Marine Operations Bureau for investigation, report or recommendation. The Harbor Resources Manager may inspect, or cause to be inspected, the vessel(s), marine sanitation device(s) of the vessel(s), boarding facilities, parking and all upland support facilities listed in the application. If the application is for a vessel that is powered or maneuvered by means of mechanical air or water propulsion above Newport Harbor's water surface, the Harbor Resources Manager shall refer the application to the City Council for consideration. The City Council may refer the application to the Harbor Commission for initial review and a recommendation to approve, modify, or deny. If the application is for any other vessel, Tthe Harbor Resources Manager shall notify an applicant of his or her decision in writing within ninety (90) days from the date on which a completed application is received. Except as provided in this section, the Harbor Resources Manager or the City Council may issue the marine activities permit upon a determination that approval of the application will not adversely affect the health, safety or welfare of those who use, enjoy, or own property near Newport Harbor. The Harbor Resources Manager or the City Council maysha# approve the application unless: A. The proposed commercial activity is likely to create noise which would adversely affect use or enjoyment of the waters of Newport Harbor by members of the public, or interfere with the rights of those who own property near the waters of Newport Harbor to the peaceful and quiet enjoyment of that property; B. The proposed commercial activity is likely to contribute to the problem of water pollution and /or litter in the waters of Newport Harbor; 17 -22 ATTACHMENT C. The vessel or craft to be used by the applicant does not satisfy the applicable standards of the United States Coast Guard, or City, County, State or Federal requirements of law; D. The proposed commercial activity is likely, when viewed in conjunction with other anticipated charters and marine operations, to create a hazard to safe navigation, or otherwise interfere with the rights of others to use the waters of Newport Harbor; E. The proposed commercial activity does not provide facilities to ensure adequate parking, safe vehicular ingress and egress, and the safe loading and unloading of passengers and supplies for the period subject to permit. For the purpose of this section, parking shall not be considered adequate unless the number of parking spaces required by Title 20 of this Code are provided for the duration of the permit and will be available during the days and hours of operation specified by the permit and that any off -site parking arrangements have been approved by the Planning Commission or the Community Development Director; F. The commercial activity would violate City, County, State or Federal requirements of law; G. The applicant has misrepresented material facts in the application; H. The proposed commercial activity does not provide uplands support, docking or boarding facilities sufficient to safely accommodate the size of vessel(s) or number of passengers indicated on the application; I. The proposed commercial activity includes an upland use that requires a use permit or other approval under the City Zoning Code and such permit has not been obtained; J. The applicant has a permit which is currently suspended or has been revoked, or a notice of revocation or suspension that is no longer subject to appeal has been issued within the past ninety (90) days. Subsection 17.10.070(A) Power to Impose Conditions —Hold Harmless. A. In granting any permit pursuant to this chapter, the Harbor Resources Manager, the City Council, or the Harbor Commission on appeal, may impose any additional conditions on the permit to ensure that the proposed commercial activity will be compatible with the predominantly recreational character of Newport Harbor, the rights of other persons using Newport Harbor, the interests of residents and property owners whose properties abut or are in close proximity to Newport Harbor, and the interests of the general public. Any such permit shall contain a provision stating that the permittee shall defend, indemnify and hold the City and the County of Orange harmless from any claim for damages, penalties or fines arising out of the exercise of the permit; or the activities of the permittee carried on under the authority of such permit. 17 -23 ATTACHMENT The Harbor Resources Manager, the City Council, or Harbor Commission, on approval or review, shall have the power to impose new conditions or modify existing conditions with regard to any permit issued pursuant to this chapter upon a determination that the operations by the permittee, in the absence of the new or modified conditions, may adversely impact the health, safety or welfare of those who use, enjoy or own property near or on the waters of Newport Harbor. 17.10.080 Duration of Permit. Unless otherwise specified, a permit issued pursuant to this chapter shall be valid for twelve (12) months from the date of issuance, unless terminated or revoked prior. The Harbor Resources Manager or the City Council may issue a permit for a shorter duration, provided the applicant meets all the requirements of this chapter for the duration of the period remitted. 17.10.090 Suspension /Revocation. Any permit granted pursuant to the provisions of this chapter may be suspended or revoked by the Harbor Resources Manager or the City Council, in whole or in part, upon fifteen (15) days' prior written notice to the permittee, served in accordance with Section 1.05.030 of the Code, directing the permittee to appear at the time, date and place specified in the notice to show cause why the permit shall not be suspended or revoked. The notice shall specify the reasons for the proposed action. A permit may be suspended or revoked on any of the following grounds: A. That the permit holder has made a misrepresentation as to any material fact set forth in the application; B. For violation of any law, rule, condition of permit or regulation of the United States, the United States Coast Guard, the State of California, the City of Newport Beach, or the County of Orange relating to the commercial activities authorized by any permit issued pursuant to this chapter; C. That the commercial activities of permittee adversely affect the health, safety or welfare of those who use, enjoy or own upland property in Newport Harbor; D. That the commercial activities of permittee fall within the criteria for denial of an application, as set forth in subsections (A) through (J) of Section 17.10.050; E. The permittee has discharged or has permitted or allowed any other person on a vessel operating under the permit to discharge any human or animal excreta from any head, toilet, holding tank or similar facility into the waters of Newport Harbor; F. Failure to continuously maintain insurance in the appropriate coverage and amounts. 17 -24 ATTACHMENT 17.10.095 Appeal. Appeals of any decision of the Harbor Resources Manager shall be made in accordance with or Chapter 17.60 or Chapter 17.65, as applicable. Decisions of the City Council under this Chapter shall be final. 17.10.100 Transfer of Permit. No permit issued pursuant to the provisions of this chapter shall be transferable either by assignment, sale, hypothecation, and operation of law or otherwise without permission of the Harbor Commission, or the City Council if the permit is issued by the City Council, having first been obtained. Application for transfer of any permit shall be subject to the same terms, conditions and requirements as an application for an original permit. In approving the transfer of any existing permit, the Harbor Commission or the City Council may impose such conditions as it may determine are in the public interest. 17.10.120 Application to Existing Commercial Activities. The commercial activities of those holding valid permits issued prior to the effective date of this chapter (March 24, 2006) may be continued to the extent authorized by the prior permit, provided the previously approved commercial activity shall not be increased or expanded beyond the activities conducted as of March 24, 2006, the effective date of this chapter, adopted by Ordinance No. 2006 -3 § 2 (part). The holder of a permit issued under Chapter 17.41 (repealed effective March, 2006) shall apply for a renewal of the permit issued under Chapter 17.41 as required by this chapter on or before December 1, 2008, and shall be issued a permit under this chapter to operate under the previously approved conditions and any condition of this chapter not inconsistent with the operations and activities authorized under the previously issued permit. All marine activities permits issued under this section shall be deemed to meet the requirements of Chapter 17.10 for renewal purposes unless or until such time as the Harbor Resources Manager, the City Council, or the Harbor Commission determines there is a substantial change in the commercial activity. A substantial change may include, but is not limited to, the following: A. An increase in or expansion of the operational characteristics of the commercial activity; B. Change in the vessel(s) authorized to operate under the terms of the permit, which change results in an increase in size or capacity of the vessel; C. Change in the maximum number of patrons or passengers authorized to participate in the commercial harbor activity on an authorized vessel; D. Change in the approved off - street parking agreement(s), or loss of parking provided prior to the effective date of the ordinance codified in this title; 17 -25 ATTACHMENT E. Change in the physical condition of the dock, gangway or pilings that would compromise the safety of the patrons or passengers; F. Change in the location where the vessel(s) is berthed and /or loads and unloads patrons or passengers and /or provisions for the commercial activity; G. Change in the approved route of travel; H. Failure to correct a violation of the standard conditions imposed pursuant to Section 17.10.070(B). 17.20.060 Air and Water Propulsion Vessels Prohibited. A. No person shall operate any vessel on the waters of Newport Harbor if the vessel is powered or maneuvered by means of mechanical air or water propulsion above the surface of the water. B. The provisions of this section do not apply to the operation of any vessel by any public agency,-4ar any person responding to an emergency on behalf of any public agency,.- or any person authorized under a permit issued by the City Council to operate a vessel that is powered or maneuvered by means of mechanical air or water propulsion above Newport Harbor's water surface. 17 -26 ATTACHMENT G Miller, Chris From: Randy Curry <rcurry @currylawyers.conn> Sent: Sunday, May 03, 2015 11:09 AM To: Dixon, Diane; Petros, Tony; Duffield, Duffy; Selich, Edward; Peotter, Scott; Curry, Keith Cc: Miller, Chris; Kiff, Dave Subject: Re: Water Propelled Vessels Study Session Dear Council: Though I do not anticipate that you will fall prey to such tactics, I want to alert you to a Facebook social media campaign that Jetpack operator Dean O'Malley is waging to drum up emails to be sent to you in support of his admittedly inherently dangerous operation in Newport Bay. Mr. O'Malley's Facebook campaign encourages his friends and customers, whether Newport Beach residents or not, to click a box which shoots emails to you. The obvious intent is to curry favor with you in support of his operation. I trust you will not allow important local government decisions to be swayed by biased and self- serving Facebook social media campaigns. It may be unfortunate, but as a result of Mr. O'Malley's conduct, residents in opposition now feel compelled to obtain resident signatures supporting the Council's reasoned decision to ban Jetpack operations. These may be provided to you in the near future. This resident concern stems from the fact that Mr. Curry was not present at the last City Council meeting, and that he may again attempt to support Mr. O'Malley and sway the vote on this matter. He showed initial support for Mr. O'Malley's operation despite the independent Council authorized committee's determination that such operations should be banned. Mr. Curry provided no reasoning to support his position, which he voiced at the Study Session regarding this matter, immediately after hearing the committee's presentation concluding that such operations are too dangerous and should be banned. Most of you campaigned with promises of fiscal responsibility and local government transparency. My prior emails directly dealt with concerns regarding lack of transparency in the City's dealings with Mr. O'Malley. My prior emails also dealt with fiscal issues involving the decision on future Jetpack operations. Clearly, the safety concerns, risks of injuries, risks of deaths, risks of property damage, and the potential resulting liability to the City of Newport Beach, along with the noise pollution which is unfair to residents, far overshadow any potential fiscal benefit to the City of Newport Beach. I trust that the City Council will not be bullied into a bad decision based on a Facebook social media campaign. This would evidence shallow reasoning and would be a bad precedent for future decision making by this Council. 17 -27 If any of you, including Mr. Curry, have any continued interest in supporting this inherently dangerous operation in Newport Harbor, which has little fiscal value to the City of Newport Beach, I again invite you to be transparent and state your reasons. Please make this email a part of the public record in this matter, and attach it to the website. Thank you. Sincerely, Randy Curry Sent from my iPhone > On Apr 4, 2015, at 7:20 AM, Randy Curry <rcurry @currylawyers.com> wrote: > Dear Council: > I have received no response to my 3/5/15 email set forth below. Without input from you, the public can only speculate as to what fiscal value, if any, the City of Newport Beach might receive by condoning and licensing an inherently dangerous Jetpack operation. Do any of you know? Has any study been done? The current operator has admitted, in newspaper accounts reported by the Daily Pilot and Orange County Register, that his business is inherently dangerous. This fact is further evidenced by release agreements Jetpack customers are required to sign. What potential fiscal value will result from sanctioning a continued Jetpack operation? How do you balance this potential income against the risks of injury, death, and resulting liability to the City of Newport Beach? And, as to potential liability, can the City Attorney conclude that there is no liability risk to the City of Newport Beach, in the event you license an inherently dangerous business, in disregard of the Committee Report from a Committee established by the City Council, which concluded that such a business is too dangerous for Newport Bay? > I am copying Mr. Kiff in order to request that this email be published and made part of the public record record in this matter. > Your consideration of these issues at any future hearings would be appreciated. > Randy Curry > Sent from my iPhone >> On Mar 5, 2015, at 1:12 PM, Randy Curry <rcurry @currylawyers.com> wrote: >> Dear Council: 2 17 -28 >> My prior comments did not address potential income to Newport Beach which could be generated by a continued commercial Jetpack operation. >> Because most of you call yourselves fiscal conservatives, I trust you intend to permit revenue generating businesses where the potential fiscal revenue which might be generated is not trumped by the risks and potential negative effects to the city and its residents. >> If statements regarding the current Jetpack operation are true, that operation provides an average of 8 -12 rides on a good summer operational day and an average of 1 -4 rides during operational days in the winter months. Each ride apparently averages approximately $150. Based on an estimate of 260 operational days per year, estimated annual gross revenue is $195,000. Please correct me if you understand differently, providing the basis for the numbers you understand to be correct. >> The City of Newport Beach should receive a modest annual business license tax payment. Additionally, the city should receive sales tax revenue on an estimated $195,000 in gross sales. Without taking into consideration any administrative fees and costs, and assuming the city receives the entire 8% of $195,000 in gross sales, the estimated sales tax revenue resulting from continued operation of a single Jetpack operator in Newport Beach totals only an estimated amount of $15,600. >> Some of you might speculate that Jetpack customers will spend money at other businesses in Newport Beach. I am aware of no study to support such speculation, or to determine any amount typically spent which would not have been spent but for a customer's Jetpack ride. One would have to speculate to say that other Newport Beach businesses would lose a dime because of banning current Jetpack operations or by limiting such operations to ocean areas outside of Newport Bay. If you are aware of studies to the contrary, please let me know and provide copies of such studies. >> You all have duties and obligations to your constituents. In making a fiscally conservative decision about condoning and permitting continued commercial Jetpack operations in Newport Bay, please provide the following information. What are your assessments of the potential income to be generated versus the potential risk of death, injury, and property damage, in addition to the noise pollution and disruption to the quiet enjoyment expected by your constituents in Newport Beach? I look forward to receipt of your responses. Alternatively, as I previously suggested, please immediately provide your assessments and responses to these questions and inquiries in the commentary section of the Daily Pilot. >> Thank you, >> Randy Curry >> Sent from my iPhone >>> On Mar 4, 2015, at 8:04 PM, Randy Curry <rcurry @currylawyers.com> wrote: 3 17 -29 ► 7 >>> Dear Council: >>> Not hearing back from any of you, I can only assume that my comments were ignored and disregarded by each of you. This is not surprising, as it is apparent that the City Council members making comments at the recent study session wholly disregarded the presentation, report, and recommendation of the committee it established to conduct a months long study of the viability of continued commercial Jetpack operations in Newport Harbor. >>> While the committee and I were apparently ignored and disregarded, I received an email from a resident in support of continued Jetpack operations, stating that she received an email from the City Council thanking her for an email she sent supporting the City Council's comments regarding this matter. Please let me know whether you sent such an email, whether such an email was sent on your behalf, and, if so, what was contained in the email. I understand that emails to and from the City Council, including my emails to you, are public record. >>> Further, I received another email stating that Dean O'Malley was at City Hall immediately prior to the City Council study session to privately meet with City Council members for the purpose of lobbying support for his Jetpack operation. Many of you were elected based on promises of transparency in our local government. I would appreciate your responding, advising whether or not you met with Dean as indicated, and whether you believe such conduct, if true, should take place. >>> Finally, I would like to understand why the City Council apparently wishes to find a way to allow continued Jetpack operations. Mr. Curry stated that this was his wish. Others of you agreed. Why? >>> What determinations have you made regarding safety, or lack thereof, and what is the basis for those determinations? >>> How is the Committee's report wrong, and what is the basis for your positions regarding each of the determinations made by the Committee in its presentation and report? >>> What is the risk of claims and lawsuits against Newport Beach for sanctioning continued operations? In the event of death, injury, or property damage resulting from such commercial operations, do you think that no claim or legal action is viable? If so, what is the basis for this determination? Can insurance protect against all potential claims? Do governmental tort immunities protect the City of Newport Beach? What is the basis of your determinations in this regard? >>> I would appreciate your individual responses to me. Alternatively, I request that each of you immediately address and respond to all of these issues and questions in the Commentary section of the Daily Pilot. >>> Thank you, >>> Randy Curry e1 17 -30 >>> 325 Via Lido Nord >>> Newport Beach, Calif. 92663 >>> 949 - 258 -4381 >>> Law Offices of Randy D. Curry >>> 2901 W. Coast Hwy., Suite 200 >>> Newport Beach, Calif. 92663 >>> 949 - 258 -4381 >>> Sent from my iPhone »» On Feb 24, 2015, at 8:45 PM, Randy Curry <rcurry @currylawyers.com> wrote: »» Dear Council: »» I hope my comments were raised at the study session earlier today. I would appreciate being apprised of further study sessions, recommendations, or hearings related to this matter. »» Thank you, »» Randy Curry »» Sent from my iPhone » »> On Feb 17, 2015, at 5:36 PM, Randy Curry <rcurry @currylawyers.com> wrote: » »> Dear Council: » »> I am a resident of Lido Isle and am an attorney in Newport Beach. I am contacting you regarding concerns with the Jetpack America operation and future permits for similar inherently dangerous operations. I have been communicating with Chris Miller, the Newport Beach Harbor Manager, and I am aware of the upcoming study session scheduled for 2/24/15. Though I will not be able to attend, I would appreciate it if my concerns set forth herein are taken into consideration. » »> I have first hand knowledge that the Jetpack America operation has been a hazard to boaters and allows dangerous maneuvers by Jetpack America participants and staff. I have seen it for myself, and when contacting the Harbor Patrol to report unsafe conduct, was advised to contact the City. F7 17 -31 » »> I have first hand knowledge of Jetpack America's past illegal use of public beaches to pick up and drop off passengers and to post signs to advertise its business. » »> I propose that the City of Newport Beach not permit commercial Jetpack operations. I further propose that private operators not be allowed in Newport Bay. They are unreasonably and inherently dangerous to the both the operators and to other boaters. » »> The Orange County Register, on 6/25/14, reported the $100,000 settlement of a lawsuit against Jetpack America by a customer hurt in Newport Bay. The City of Newport Beach was not a party to that lawsuit. As a plaintiff's attorney, I can assure you that the City risks governmental tort claims and litigation by condoning and permitting continued operations of this kind. » »> I recently asked Chris Miller if the City had reviewed and considered obtaining a legal opinion regarding the liability waiver utilized by Jetpack America. I understand that a copy of the liability waiver has not been obtained or considered. Is it binding? Does it protect the City from wrongful death claims, personal injury claims, or property damage claims should claims be made against the City for allowing and issuing a business permit to a commercial business conducting an inherently dangerous operation in Newport Bay? Can the City rely on governmental tort immunities for protection against such claims and lawsuits? » »> Bay front residents have voiced numerous complaints regarding the noise pollution created by the Jetpack operation. At a City meeting I attended, a solution proposed was to constantly move the operation around the Newport Bay, thus bothering everybody at times, but nobody all of the time. I think such a "solution" will lead to constant irritation and complaints to the City. Nobody wants the operation in front of his or her house. » »> I do not know if consideration has been given to the effect such operations have on bird and sea life. I would imagine that such effects should be considered by the Council if there is any thought of allowing such operations in the future. » »> Thank you for your consideration. » »> Randy Curry » »> Law Offices of Randy D. Curry » »> 2901 W. Coast Hwy., Suite 200 » »> Newport Beach, Calif. 92663 » »> 949 - 258 -4381 9 17 -32 »»> Sent from my Whone 17 -33 ATTACHMENT H JET PACK ��� AIJ6AILA" Jetpack America Operations Plan Operational Periods October- February: 10am -4pm (flight timeframe) March - September: 10am -5pm (flight timeframe) Standard daily operation begins one hour before the first flight time (8am arrival), which gives ample time to check equipment, set up flight area, get first customers signed in and complete their orientation. The operation wraps one hour after the last flight is completed, which gives time for clean -up, equipment checks, etc. Concession Location — Map A 'S a Q� �� o0 1. 17 -34 I-r�ALCK Concession Location — Map B -1 Concession Location — Map B -2 17 -35 �CK ii MS CCA" Office —All customers will check -in and sign waivers at the Jetpack America office prior to their flights. All first -time customers will watch the instructional safety video and go through equipment training in the office before proceeding to the Flight Area. Dock Storage —AII jetpack boat unit equipment and support jet skis will be stored on in the Dock Storage area, where all units will be inspected before and after each flight day. Additionally, all equipment will be fully serviced each week during our scheduled weekly maintenance activities. Flight Area(s) —To allow for safe handling of all customers and to minimize the impact on local residents, there will be two flight areas established. The first will be in the open area of the Turning Basin, on the opposite end of the area from the Lido Island residents, and the second will consist of approximately 100 yards of water adjacent to the new Marina Park development. These operating areas will keep customers out of the higher traffic areas, provide good visibility for the instructor and support staff and allow easy access from the office. All pilots will always be kept within 100 feet of shore and will be instructed to maintain a maximum of 5 mph. Instructors will maintain communication with the pilot via the walkie- talkie helmet and the instructor assistant will maintain jet ski support for all customers in both areas. If two or more jetpacks are in operation, the flight areas will be split to give at least 50 feet of buffer between customers, with each instructor being responsible for maintaining their customer's flight path, and there will be at least one instructor assistant on a jet ski for every two customers. If there are concerns with the flight area for a particular day (ex. weather, special event, etc.), the Newport Beach Harbor Patrol can contact Jetpack America management by calling 888 -553 -6471 to discuss and adjust operations accordingly. Student -to- Instructor Ratios The staff -to- customer ratio will generally be 3:1, with one instructor on the pontoon boat or on the flight jet ski, one instructor assistant available to provide support via a second jet ski and a third support person on the pontoon boat. If there are two jetpacks in operation, the staff -to- customer ratio will generally be 4:2 or greater, where there will be one instructor on the pontoon boat or operating the throttle from the jet ski, one instructor assistant available to provide support via a second jet ski and one additional staff member on the pontoon boat providing assistance with customer staging. Note: The staffing above should be recognized as "for customer flights only ". Since all Jetpack America staff members are fully certified pilots, they do not require the instructor on the remote control nor the instructor assistant on the jet ski. Customer pilots can be easily identified from the staff members, since customers will always be flying with the walkie- talkie helmets during their flights. 17 -36 SET Pte. C K Equipment Overview The following equipment will be used for all customer flights: Jetpack — The backpack the customer wears, which has the hose connection and nozzles, which direct the water pressure downward to propel the pilot into the air. Although the pack weighs 28 Ibs, its carbon fiber design allows it to float, so there's no risk of sinking while wearing the pack. Jetblade —A foot - mounted system where riders strap into standard wakeboard boots and fly with the water coming from the sides of the feet rather than from a backpack on the back. Like the jetpack, the Jetblade is buoyant so there is no risk of sinking while in the water. The instruction process is very similar to the jetpack, with instructors controlling throttle while giving directions via the walkie- talkie helmet. Hose —The 33 -40' hose, which connects the boat unit or jet ski to the system, transferring up to 1000 gallons of water to lift the pilot into the air. Boat Unit— Also referred to as "the pod ", the boat unit is roughly the same size as a standard jet ski and contains a SeaDoo RXPX engine, which powers the impeller to push the water up through the hose and out the nozzles of the backpack. Jetpack Jet Ski — The new jetpack systems hook up to the back of a standard jet ski, with a u -pipe that redirects the water flow to the front of the ski. The hose runs along the side of the ski and is tethered to the front of the jet ski to keep it traveling forward. The instructor sits on the ski and throttles manually rather than via remote control. Support Jet Ski —The Instructor Assistant provides support via a second jet ski. Note: The jet ski will not be used for Jetpack America staff members and experienced pilots who have been signed off to Level 5 or higher on the Returning Pilot Skills Matrix. Life Vest —AII pilots wear a USCG- approved life vest for the duration of their flights. Remote Control —The Instructor on the beach will maintain throttle control for the duration of all first- time pilots' flights. The Instructor also has the ability to override experienced pilots' throttle, should they get into a dangerous situation. Walkie - Talkie Helmet — AII pilots wear a waterproof walkie- talkie helmet, which allows the instructor to communicate with the pilot throughout their flight, providing step -by -step instruction as the flight occurs. This training method allows most first -time pilots to begin flying in five minutes or less. 17 -37 SET Pte. C K Dili ANUMCA^ Training Requirements for Staff All Instructors are CPR - certified and receive Certified Flight Instructor designation from our Jetpack Academy through a comprehensive certification course. Jetpack America is working with the US Coast Guard to create a limited license for jetpack instructors that will satisfy the new Coast Guard regulation that requires all jetpack instructors to have Operator Uninspected Passenger Vessel (OUPV) captain's licenses. All Instructor Assistants must be CPR - certified and demonstrate the necessary support skills for the position (jet ski operation, swimming skills, shadow - flying, etc.) Training Requirements for Customers All customers must complete the following steps as part of their jetpack flight experience: - Read and sign liability waiver - Prove a thorough understanding of the English language - Watch Jetpack Flight Training Video - Watch Equipment Overview - Watch Flight Control Overview - Demonstrate all required flight skills in Training Pack before proceeding to Flight Area - Confirm all equipment fits and walkie- talkie instructions are clearly heard before entering water - Listen to all flight commands from the Instructor on shore for the duration of the flight c Instructor reserves the right to stop a customer's flight at any time, if he /she is not following instructions or is flying in an unsafe manner Age restrictions Solo - flying customers must be at least 16 years of age. If under the age of 18, at least one of the minor's parents /guardians must be on -site for the duration of the flight experience and sign the parental liability waiver. Our tandem jetpack setup allows a Certified Flight Instructor to fly with children between the ages of 5 and 16 and between 50 Ibs and 150 lbs. Weight restrictions Individual flight customers must be between 85 and 330 Ibs to participate. Tandem customers must be between 50 Ibs and 150 Ibs. Height restrictions 17 -38 K jLA7 Individual flight customers must be between 5'0" and 7'0" to participate. Tandem customers must be between 3'0" and 5'6 ". Weather Considerations The jetpack can be operated in most weather conditions, including moderately high seas and moderate winds. If conditions in the Flight Area worsen beyond 2 -foot waves and /or 20 knot winds, all flights will be halted until weather conditions improve. Emergency Response Plan In the event of a water or land emergency, the following steps would be taken: - Call 911 to report the incident and request lifeguard assistance (both Instructor and Instructor Assistant have cell phones on them at all times, so the person who is closest to the customer would attend to the customer, while the other calls 911). For non - emergency incidents, call Harbor Patrol on Channel 16 or at 714 - 647 -7000 to report details of the incident. If the incident occurred in the water: o The Instructor Assistant on the support jet ski responds to the customer, , determining if the customer is conscious or unconscious o If the customer is unconscious: • The Instructor Assistant's first objective is to ensure the customer is breathing and there are no obstructions of the airways • To avoid potential back /spinal trauma, the customer should be left in the pack to provide stable support while the customer is brought to shore, either by swimming the customer floating face -up in the pack or by using the jet ski to slowly tow in Only if the customer requires CPR should they be released from the pack • Wait for Harbor Patrol assistance o If the customer is conscious: • The Instructor Assistant communicates with the customer to determine the severity of the injury • If the customer is able, he /she will grab the tow rope on the jet ski and be pulled to shore • If the customer is unable to hold the tow rope, the Instructor Assistant will get into the water to assist with the situation and pull the customer to shore, either in the jetpack or after releasing him /her from it - If the incident occurred out of the water: o The Instructor attends to the customer determining if the customer is conscious or unconscious o If the customer is unconscious: 17 -39 �CK AIiiA1CA7 • The Instructor's first objective is to ensure the customer is breathing and there are no obstructions of the airways • To minimize potential neck or back trauma, the customer should be left in the pack to provide stable support • Only if the customer requires CPR should they be released from the pack • Wait for Harbor Patrol assistance o If the customer is conscious: • The Instructor communicates with the customer to determine the severity of the injury • The Instructor communicates the status to the Instructor Assistant to share with the Lifeguards upon their arrival After the customer has been stabilized on shore, Harbor Patrol will determine if the customer requires paramedic support or if he /she can be released on their own or to family /friends on -site. If Harbor Patrol determines the customer requires paramedic support, the customer will be turned over to paramedics to determine next steps. After any incident, the instructor on -site completes an incident report (see below) with the full details of what occurred, how it can be prevented in the future and any other feedback File a Marine Casualty Report with the US Coast Guard (619- 278 -7241) to report the details of the incident, provided the incident meets the definition of a Marine Casualty, per Maritime Safety and Security Bulletin: 005 -13. Communications Most communications occur through the walkie- talkies, which both the Instructor and Instructor Assistant have on them at all times. If there is an issue with the walkie- talkies (i.e. battery is dead, radio is dropped in the water, etc.), then verbal communications (within earshot) or hand signals (out of audible range) are used. Additionally, there will be at least one cell phone at the Flight Staging Area, since general operational communications are handled through text messages (informing assistants of customer's flight time, flight duration, video package, etc.). This cell phone can be used to call 911 in emergency situations. EmergencV Signals Since both the Instructor and Instructor Assistant have walkie- talkies, the primary method of communication is via the walkie- talkies, but there are hand signals that are used in addition and in case of issues with the walkie- talkies. Thumbs Up— Everything is good Thumbs Down — Something is wrong Hand motion across the throat — Cut the engine (if engine is running), unit is out of gas (if engine is not running) 17 -40 SET Pte. C K Dili ANUMCA^ Waving arm in customer's direction — Requesting assistance in the water In most cases, the flight area is within earshot, so verbal communication is usually sufficient. 17 -41 JETpA.CK ism ANW31MCA7 Accident or Incident Reports The following is available in a separate document: Jetpack America Incident Report Date Employee Manager Name Name Title /position Title /position Incident Date Time Location Description of incident (equipment damage, injuries, waivers signed, etc.) Employee explanation 17 -42 JET t4A. C K ism ANWGMCA7 Witnesses Action to be taken (repairs, medical attention required, etc.) By signing this document, you acknowledge that you have read and understood the information contained herein. Employee Manager Date Date www.JetpackAmerica.com 17 -43