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HomeMy WebLinkAbout88-83 - Balboa Island Ferry Inc FranchiseRESOLUTION NO. 88 -83 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH DECLARING ITS INTENTION TO GRANT A FRANCHISE TO THE BALBOA ISLAND FERRY, INC. WHEREAS, 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 WHEREAS, 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 WHEREAS, 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 WHEREAS, the proposed ferry would operate wholly within the boundaries of Newport Beach. The route of the ferry does not constitute a part of an extention of a state highway, no part of the ferry route is within ten (10) miles of a toll bridge in operation, or under construction, over any body of water across which the ferry is to operate; and WHEREAS, the proposed franchise is consistent with the 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 1 • WHEREAS, the proposed franchise would authorize a level of public service essentially identical to that offered by the ferry during the preceding twenty -five (25) years and, as such, does not constitute "development" as that term is defined in the Coastal Act; and WHEREAS, the proposed franchise and related lease renewal relate to existing facilities and are "categorically exempt" pursuant to the provisions of the California Environmental Quality Act and the CEQA Guidelines; and WHEREAS, the Newport Beach City Charter requires the Council declare its intention to grant a franchise and to grant a franchise only after conducting a public hearing, duly noticed, at which persons interested in, or objecting to, the proposed franchise may appear before the City Council and be heard. NOW, THEREFORE, BE IT RESOLVED 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 Island Ferry Company, Inc. under the following terms and conditions: Section 1: Grant of Franchise. The City Council of the City of Newport Beach (City) grants to Balboa Island Ferry, Inc:. (Grantee), a California corporation, a franchise to operate a toll ferry for the transportation of passengers, vehicles and freight across Lower Newport Bay between the northerly end of Palm Street on the Balboa Peninsula and the southerly end of Agate Avenue on Balboa Island. 2 • Section 2• Term: The franchise shall commence at 12:00 A.M., October 1, 1988 and expire 11:59 P.M., September 30, 2013. Section 3: 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 4: 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 5: 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 or 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 be reported on the accrual method of accounting and not the cash • method. 9 Section 6: 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 7: 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. •1 Section 8: Indemnification: In addition to the obligation of Grantee to obtain insurance, Grantee shall also indemnify, defend and hold harmless Lessor, and its officers, employees, agents and representatives, 4 from and against any and all damage, loss, cause of action, 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 9: 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 10: Aamage 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 grantee pursuant to this franchise. Section 11: 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 or 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 5 D. The public health, comfort, welfare, convenience, or safety so demands. Section 12: 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 13: Right of Acouisition: 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 eminent domain and, in the event of acquisition by either means, this franchise shall have no monetary value. Section 14: 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 by, applicable ordinances, statutes, rules or regulations of any public entity or agency having jurisdiction over grantee's operations. Grantee shall not charge City vehicles or City employees on City business for use of the ferry. Section 15: Charter Compliance: This franchise is subject to all of the terms and • conditions expressed herein and the terms and conditions specified in Article XIII of the Charter of the City of Newport Beach. 5 I Section 16: Breach /Default: The occurrence of any one or more of the following events shall constitute a material default and breach of this franchise: A. Failure to make any payment required by this franchise when this failure continues for a period of ten (10) days after written notice of non - compliance; B. Failure of grantee to observe or perform any of the covenants, conditions or provisions of this franchise where such failure continues for a period of twenty (20) days after written notice of non - compliance, provided, however, that if the nature of grantee's default is such that more than twenty (20) days are reasonably required for its cure, then grantee shall not be in default if cure is commenced within twenty (20) days after written notice and thereafter diligently pursued to completion. Section 17: Termination: City or grantee, at their option, may terminate this franchise immediately upon the occurrence of a material default or breach as defined in Section 16. Section 18: Pavments and Notices: A. Payments. All rent and other sums payable pursuant to this Lease shall be directed to: CITY OF NEWPORT BEACH FINANCE DEPARTMENT 3300 Newport Boulevard P.O. Box 1768 Newport Beach, CA 92658 -8915 or at such other place as City may hereafter designate in writing. iB. Notices. Any notice required pursuant to this franchise shall be deemed given when personally, delivered to an officer of 7 City or Grantee or when deposited in the United States mail, first class, postage prepaid, and addressed as follows: CITY• CITY CITY 3300 . P.O. Newp 0 OF NEWPORT BEACH MANAGER Newport Boulevard Box 1768 Drt Beach, CA 92658 -8915 GRANTEE: BALBOA ISLAND FERRY, INC. 410 South Bay Front Balboa Island, CA 92660 BE IT FURTHER RESOLVED that September 12, 1988, at 7:30 P.M., in the City Council Chambers of the City Hall at 3300 Newport Boulevard, Newport Beach, California, is fixed as the date, hour and place when and where any person having any interest herein or any objection to the granting of this proposed franchise may appear before the City Council and be heard. BE IT FURTHER RESOLVED that the City Clerk is authorized and directed to publish this resolution in the official newspaper of the City on or before August 26, 1988. ATTEST: ADOPTED this 22nd day i 1 ^^^