Loading...
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 pp 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. `A 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: w