MY MARK-UP OF THE PROPOSED MARINA ORDINANCE


Chapter 6.20

MARINA RULES AND REGULATIONS*

[sections in bold type contain proposed changes]

Sections:
6.20.010 Definitions.
6.20.020 Marina supervisor authority.
6.20.030 Berth applications.
6.20.040 Berth rates and service charges.
6.20.050 Nonpayment of charges.
6.20.060 Cancellation of berths.
6.20.070 Assignment or sublicensing of berths.
6.20.080 Care in berthing vessels.
6.20.090 Registration and numbering--Furnishing information to the marina upervisor.
6.20.100 Accident reports.
6.20.110 Access to vessels.
6.20.120 Gear lockers/dock boxes.
6.20.130 Disposing of refuse.
6.20.140 Hazardous conditions prohibited.
6.20.150 Maintenance of vessel.
6.20.160 Marina restrictions.
6.20.170 Vessel traffic within the marina.
6.20.180 Swimming and/or underwater diving. Prohibited Activities
6.20.190 Cruising vessels used as a residence.
6.20.200 Residential houseboats.
6.20.210 Sanitary facilities.
6.20.220 Children in marina.
6.20.230 Fishing in marina prohibited--Unloading, cleaning and disposal of fish.
6.20.240 Damage and/or loss of property.
6.20.250 Vehicle or trailer parking in marina areas.
6.20.260 Overnight camping in marina land areas prohibited.
6.20.270 Solicitation and advertising.*
6.20.280 San Francisco Bay Conservation and Development Commission permit.
6.20.290 Notice.
6.20.300 Administrative regulations.
6.20.310 Penalty.
6.20.320 Appeals.
6.20.330 Charter Vessels.

6.20.010 Definitions.

Whenever any of the words hereinafter defined are used in this chapter, they shall be construed to mean the following:

A. "Berkeley Marina," hereinafter referred to as "marina", means the area owned or controlled by the City on or within the municipal fishing pier, the breakwater, the sea walls and the extensions thereof, located on the Berkeley waterfront approximately between Channing Way on the South, Spinnaker Way on the North, Marina Boulevard on the East and the West end of the municipal fishing pier on the West.

B. "Marina manager," means the person in day-to-day charge of the actual operations of the Berkeley waterfront as designated by the City Manager. "Marina manager" also means his/her designated representative.

C. "Marina supervisor," which also may be known as "harbormaster," means the person in day-to-day charge of the actual operations of the Berkeley Marina as designated by the City Manager. "Marina supervisor" also means his/her designated representative.

D. "Permittee" means the person who has been authorized by the marina supervisor to berth his/her vessel in the marina.

E. "Vessel" means every description of watercraft used, or capable of being used, as a means of transportation on the water.

1. "Residential houseboat" means any vessel that is designed to not be capable of getting under way. This type of vessel includes any nonself-propelled vessel such as barges and/or any noncruising type houseboats.

2. "Cruising vessel" means any sailboat, motor driven boat, or cruising houseboat that is specifically designed for operation in open waters and is capable of getting under way.

F. "Residence" means any vessel, located within the marina boundaries upon which a person stays aboard three or more days and nights in any seven-day period on a continuing basis. (Ord. 6315-NS 2 (part), 1996)

Definition of "jetski" needs to be added here.
Suggest using guidelines from the NASBLA (National Association of State Boating Law) "Model Act for Personal Watercraft," which reads approximately as follows:

"Personal watercraft" shall mean any vessel less than 16 feet long, propelled by a water-jet pump or other machinery as its primary source of motor propulsion, designed to be operated by a person sitting, standing, or kneeling on, rather than sitting or standing inside, the vessel."

Definition of "operable and seaworthy" and definition of "extreme length" (or the more ambiguous "overall length") need to be added here. Also definitions of "charter vessel", "fishing charter vessel". and "fishing equipment" should appear in this section.

A definition of "private docks" versus "public docks" is needed.

6.20.020 Marina supervisor authority.

A. The marina supervisor, acting under the orders and jurisdiction of the marina manager, the director of parks and waterfront, and as designated by and subject to the authority of the City Manager and City Council, shall have full authority to interpret and enforce this chapter, and to recommend consistent regulations affecting marina operations. All orders and instructions given by him/her in the performance of his/her duties shall be complied with pursuant to this chapter.

B. Every vessel entering the marina shall immediately become subject to this chapter and to the order and direction of the marina supervisor. The marina supervisor has the authority to enter upon any vessel in the marina when necessary in the performance of his/her duties.

C. Vessels may berth in the marina only with the permission of the marina supervisor.. The marina supervisor shall have the authority to designate the berth in which any vessel shall be kept, and reserves the right to require a vessel to be moved from one berth to another berth within the marina, after giving seventy-two-hour notice of such required move.

D. If a vessel is not moved after notice in compliance with subsection C of this section, it may be moved by the marina supervisor and a reasonable towing fee charged. Vessels may be moved without prior notification, if necessary for operational efficiency, benefit to permittees in the marina, or when berthing fees are delinquent.

E.

1. The marina supervisor has the right to refuse the application for use of the marina by, and/or cancel a berthing permit for, derelict vessels, vessels in need of major overhaul and vessels not in operational order as intended by design. The Marina Supervisor may require that vessels be inspected to determine whether are operable and seaworthy

2. If a vessel owner or operator disputes the Marina Supervisor's denial of a berthing permit on the basis of a determination that a vessel is not seaworthy, the owner or operator may provide a current vessel survey certified by a licensed marine surveyor or perform a sea trial consisting of maneuvering the vessel out of the Marina, around the __ buoy and back to the vessel's berth. Such survey must be provided or sea trial conducted within ten days of notification of unseaworthiness by the marina Supervisor

Marine surveyors are not "licensed" by any government authority. They may or may not belong to one of several private associations, but this membership is not a license in any clearly defined sense. Suggest replacing with "professional" marine surveyor.

Need to fill in which buoy, obviously. The nearest government-maintained buoy is red channel marker no. 4, about three miles west of the end of the pier. The nearest privately maintained buoy is racing mark "C" of the Olympic Circle, about one mile west of the marina.

F. Remedial Actions

1. In addition to any other rights and remedies available to the City by law, when any vessel occupies any space in the Marina without authorization for use of that space (i.e. berth), for any length of time, the Marina Supervisor, or other City representative where designated by the City Manager, is authorized to move (including without limitation by towing); impound (including without limitation by securing, chaining, locking, storing, restricting access to or use of, or removing); and/or take any other reasonable remedial actions with respect to the vessel to protect the City's interests. Circumstances in which such remedial actions may be taken include without limitation where no application has been submitted, an application has not yet been approved or has been denied, a permit has expired (for example, a temporary or visitor permit) or been cancelled, and/or where berthing fees are delinquent.

2. The Council may adopt fees for such remedial actions by resolution. Any such fees shall be immediately due and payable upon notice thereof. Unpaid fees of any kind relating to the berthing of a vessel at the Marina (including without limitation berthing fees and fees for redial actions) shall constitute a lien upon the vessel in favor of the City enforceable by a lien sale of the vessel, as well as a debt personally enforceable against the responsible party, and shall trigger the additional administrative fee provided in subsection C of section 6.20.040. Where any such fees are unpaid, the City may enforce its right through any and all appropriate means, including without limitation court action, judicial or non-judicial sale of the vessel at auction, and/or proceedings under the Boaters Lien Law of the California Harbors & Navigation Code (H. &N.C. 500 et seq.., as amended from time to time) and/or, where applicable, federal maritime law. Until any unpaid fees are paid in full, or the vessel incurring such fees is released by the Marina Supervisor, no person shall have such vessel removed from the Marina, and the Marina Supervisor is authorized to take any reasonable action necessary to prevent the vessel's removal. (Ord. 6315-NS 2 (part), 1996)

6.20.030 Berth applications.

Application for berths in the marina shall be made upon forms furnished by the marina supervisor and shall be granted in the order received. Current vessel registration, or evidence showing the applicant has legal authority to occupy, use and incur charges to the vessel, must be presented to the marina supervisor before a permit to berth vessel will be issued. All part-owners' names must appear on the application, which may be amended, in writing, at any time. (Ord. 6315-NS 2 (part), 1996)

6.20.040 Berth rates and service charges.

A. The rates for services, supplies and berthing fees at the marina shall be established by resolution of the council of the City. All vessels berthing at the marina will be charged a berthing fee, unless the council has specifically authorized otherwise. Vessels will be charged according to the length of the vessel or the length of the berth, whichever is greater.

B. The marina supervisor may establish a special rate for services, supplies and berthing which are not included in the fee resolution referred to in subsection A of this section. Such fees shall be based upon the reasonable costs of the service provided and be approved in writing by the City Manager. A request by the marina supervisor of any such rate shall include a detailed explanation of why such rate should apply, a copy of which shall be provided to the Waterfront Commission.

C. All charges for berthing shall be due and payable monthly in advance, on or before the first day of each month, and shall be delinquent on the fifteenth day of the month for which the payments are due. All charges for service and supplies shall be due upon billing and shall be delinquent fifteen days thereafter. If any payment is delinquent as provided herein, an administrative fee of ten percent shall be added and paid in addition thereto.

D. The City may change monthly berthing fees and other fees and charges after giving at least thirty days' written notice to a permittee.

E. Permittees who wish to remove their vessels from the marina for more than thirty days, but less than twelve months, and do not want to permanently release their berths, may pay one-half the monthly berth rate. The marina supervisor may use the berth(s) for temporary and visitor berthing. Fifteen days' written notice is required to the marina supervisor prior to placing a berth on one-half rate, and fifteen days' written notice is required prior to returning the vessel to the berth.

F. Use of a berth is restricted to one vessel only, not including a dinghy or small boat up to fourteen feet in length, provided that neither the vessel or the dinghy or small boat extends beyond the limits of the berth width and length, as set forth in Section 6.20.160 subsections J and K, unless permission has been granted by the marina supervisor for berthing more than one vessel in the berth, if the size of the berth will permit its use by two or more vessels. Vessels in "S" section berths shall be limited to open power or row boats only, of gross length nineteen feet eleven inches or less, all extensions, including outboard motors, included. (Ord. 6315-NS 2 (part), 1996)

6.20.050 Nonpayment of charges.

A. No person shall remove or cause to be removed from the marina, any vessel upon which charges for berthing, dry storage, or any other charges are delinquent, without first paying all such delinquent charges. The marina supervisor is authorized to take actions necessary to prevent the removal of a vessel in violation of this subsection, including moving, securing, or otherwise detaining the vessel.

B. It is unlawful for any person to violate the provisions of subsection A of this section, or to willfully give false information to the City in order to secure the removal of a vessel.

C. When any charges upon a vessel are delinquent for twenty days or more, the City may post a notice of delinquency and secure the vessel to prevent it from being moved. The City may add a service charge to the berther's account for securing the vessel.

D. When, subsequent to securing a vessel for delinquent charges as provided in subsection D of this section, any charges remain delinquent and unpaid, the City may enforce the lien pursuant to the procedures set forth in the Boaters Lien Law Div. 3, Ch. 2, Art. 4, Secs 500 through 509) of the California Harbors and Navigation Code as amended from time to time. (Ord. 6315-NS 2 (part), 1996)

6.20.060 Cancellation of berths.

A. A permittee who wishes to cancel his/her permit to berth vessel shall give the marina supervisor thirty days' written notice thereof in accordance with Section 6.20.090 of this chapter.

B. The marina supervisor may, at the request of the permittee, reduce the required thirty-day notice of cancellation if there is no financial loss to the City as a result of such reduction.

C. The marina supervisor may cancel the permit to berth vessel upon thirty days' written notice to the permittee for any violation of this chapter or for continuous late payment of charges. The reason for cancellation shall be stated in said notice. The marina supervisor may cancel a permit to berth vessel with twenty-four hours' written notice to the permittee if the vessel has been removed from the berth and the charges are delinquent and unpaid. However, the marina supervisor may order the immediate cancellation of a permit to berth vessel if the vessel poses a danger to persons or property during a thirty-day cancellation notice period.

D. Permittees who have been forced by the City to vacate their berths for the purpose of marina repairs or construction shall have priority for re-entry into a berth when such repair or construction is completed. (Ord. 6315-NS 2 (part), 1996)

E. Nothing in this Ordinance, a berthing application, or a berthing permit shall be deemed to create or to have created a relationship between the City and a permittee other than that of a licensor and licensee.

However, the fact that berthers pay possessory interest tax is very strong implication that an interest in real property is created by the contract between the berther and the City. New wording, which appears in a recent printed copy of the proposed ordinance, asserts that there is no such relationship. This assertion seems unlikely to hold up if contested.

6.20.070 Assignment or sublicensing of berths.

A. Permittees shall have no right or power whatsoever to assign or sublicense the berth or any part thereof, to any other person, or for use by any other vessel. Any permit to berth vessel that is assigned, sublicensed or otherwise transferred will be subject to immediate cancellation. However, when a permittee sells his/her vessel and cancels the permit, and the purchaser wishes to retain the berth for the same vessel, the berth may then be assigned to the new owner, if a new application for permit to berth vessel is executed within five days of cancellation.

B. Once during every calendar year, a permittee may allow another boat owner to use his/her berth for a period not to exceed thirty days. The permittee must give written notice, obtain the marina supervisor's permission, and complete a temporary use of berth form, prior to the effective date of change. (Ord. 6315-NS 2 (part), 1996)

6.20.080 Care in berthing vessels.

A. At all times while a vessel is berthed at the marina, the permittee shall cause it to be safely and properly secured, in a manner acceptable to the marina supervisor. If the marina supervisor deems it necessary to re-secure or move a vessel for any reason, the permittee or the owner may be required to pay a reasonable service charge for doing so, plus the cost of all materials used therefor. However, the City does not assume, and shall have no responsibility or liability for the safety of the vessel, and shall not be liable for fire, theft, sinking, or any other damage to the vessel, its equipment or any property in or on the vessel, by reason of the marina supervisor's decision either to re-secure or move the vessel, or to not re-secure or move the vessel, except only such damage caused by the marina supervisor's willful injury or sole gross negligence in re-securing or moving the vessel.

B. No person shall berth within the marina any vessel of any kind whatsoever that is in such a condition that it is liable to sink or damage docks, floats or other vessels, or that may become a menace to navigation.

C. In the event a vessel is wrecked or sunk within the marina, it shall be the owner's responsibility to mark its position immediately, and to provide for the raising and disposition of such vessel within twenty-four hours, and to assume all liability for damage caused to City property or other vessels in the marina. (Ord. 6315-NS 2 (part), 1996)

6.20.090 Registration and numbering--Furnishing information to the marina supervisor.

A. Every vessel entering the marina must be currently registered and numbered or documented, as provided by the laws of the state or U.S. Government regulations.

B. The owners or operators of vessels entering the marina shall furnish all documents relating to the vessel and the ownership thereof, upon request by the marina supervisor. The marina supervisor shall have the authority to obtain vessel registration information from state or federal authorities at any time. (Ord. 6315-NS 2 (part), 1996) 6.20.100 Accident reports.

If injury to any person, or damage to private or public property, results from a boating accident within the marina boundaries, the operators of all vessels involved must complete an accident report, on a form provided by the marina supervisor, within twenty-four hours of the accident. If an operator of a vessel is involved in an accident within the marina boundaries for which a California boating accident report must be filed with the Department of Boating and Waterways, a copy shall be provided to the marina supervisor. (Ord. 6315-NS 2 (part), 1996)

6.20.110 Access to vessels.

The berthing areas of the marina are closed to the general public. Only permittees, their guests, hired personnel and those receiving permission from the marina supervisor may enter upon the docks; except, however, that "K" Dock is open and accessible to the general public during regular marina business hours. (Ord. 6315-NS 2 (part), 1996)

6.20.120 Gear lockers/dock boxes.

One gear locker/dock box may be assigned to a permittee. Individual gear lockers and dock boxes shall be kept in a safe condition and may contain no flammable or combustible liquids, (i.e. gasoline and other fuels, oil and oil based paints, paint thinner and other thinners, epoxy resin and other resins, etc.) or other hazardous materials, (i.e. acids, oxidizers, poisons, etc.), and are subject to inspection by the marina supervisor at all reasonable times. Gear lockers/dock boxes must be emptied upon cancellation of permit to berth vessel. (Ord. 6315-NS 2 (part), 1996)

6.20.130 Disposing of refuse.

A. No person shall discharge or deposit or cause to be discharged or deposited, from any vessel or from the shore, dock, float or gangway, or otherwise, any refuse matter of any kind whatsoever into or upon the waters or land area of the marina.

B. No person shall discharge or cause to be discharged oil (including emulsified oils and excessive, unburned fuels from engine exhaust), spirits, flammable liquids or contaminated bilge water onto the waters or lands of the marina, or into any drains in the marina.

C. All garbage must be deposited in receptacles furnished by the City for that purpose.

D. No person shall discharge or deposit any matter into the sanitary sewer system except as provided in Berkeley Municipal Code Chapter 17.16, Sanitary Sewers. (Ord. 6315-NS 2 (part), 1996)

6.20.140 Hazardous conditions prohibited.

Floats, gangways, tops of lockers and docks shall be kept clear at all times of skiffs, dinghies, boat gear, debris, hazardous or flammable materials, and other equipment. Only boarding steps approved by the marina supervisor are permitted on the docks. No boarding step shall be more than eighteen inches wide and three feet long, unless written permission is obtained from the marina supervisor upon his/her determination that steps exceeding these measurements are necessary. Boarding steps shall be easily movable, and shall not be used as a storage locker and may not obstruct passage on any dock or float. (Ord. 6315-NS 2 (part), 1996)

6.20.150 Maintenance of vessel.

A. Repairs to and maintenance of a vessel may be made or accomplished while such vessel is at its assigned berth, provided all such work is done within the confines of the vessel itself and is not carried on in any manner whatsoever upon floats, gangways or docks in accordance with Section 6.20.140 of this chapter. Repairs on vessels may not interfere with any other vessels. No debris or fluids from repairs or maintenance, including paint chips and sanding dust, may be allowed to accumulate on any dock or enter the marina waters.

B. No person shall use welding equipment or a burning torch on or near any dock or vessel in the marina, other than at areas designated by the marina supervisor.

C. No person shall use spray paint or sand blasting equipment in the marina, other than at areas designated by the marina supervisor.

D. An individual or entity receiving compensation for repairing or maintaining a vessel berthed at the marina must possess proper work authorization from the permittee and a City business license. (Ord. 6315-NS 2 (part), 1996)

6.20.160 Marina restrictions.

A. Vessels and vessel operators must comply with California Harbors and Navigation Code Division 3, Chapter 5, "Operation and Equipment of Vessels" (Sections 650-669), as amended from time to time.

B. All vessels and vessel operators must comply with applicable sections of Berkeley's Uniform Fire Code, Berkeley Municipal Code Chapter 19.48 as amended from time to time.

C. The permittee is legally responsible for the conduct of his/her crew, hired personnel and guests. All persons shall comply with applicable sections of Berkeley's Community Noise Code, Berkeley Municipal Code Chapter 13.40 as amended from time to time.

D. Gates to berthing area are to be locked at all times. Blocking open or climbing over gates is prohibited.

E. Except when on board a vessel, animals must be on a leash not to exceed six feet in length. Violators may be cited and fined, and repeated or continuous violations may result in cancellation of the permit to berth vessel. All animals in the marina are subject to the provisions of Berkeley Municipal Code Title 10, Animals.

F. No person shall willfully injure, break, remove or tamper with any part of any vessel in the marina, nor shall any person climb into or upon any vessel without consent of the owner, unless in performance of official duties or to protect life and/or property.

G. No person shall land on or take off from any land or waters of the marina in any helicopter, seaplane or other aircraft without prior approval of the marina supervisor except in an emergency.

H. All vessels must keep a minimum of two hundred feet from the Berkeley Municipal Fishing Pier, except when using the designated boat passage at the end of the fishing pier.

I. No structure may be built for the purpose of berthing, anchoring or mooring vessels within the marina, without advance permission from the marina supervisor.

With anti-fouling paints becomming less effective in the face of stricter environmental regulations, the use of lift docks is becomming more prevalent as an alternative to toxic anti-fouling bottom paint. Allowing appropriate use of such docks increases the marketability of marina berths. Lift docks are environmentally friendly because they reduce the use of toxic bottom paint and eliminate the need for regular underwater cleaning of this paint. A proper installation of a free-standing floating dock (such as the "Hydrohoist" type) should be acceptable, while bottom-mounted and dock-supported lift docks are probably not acceptable for technical reasons.

The current wording is unclear about Marina policy towards lift docks. While not withdrawing the Marina Supervisor's discretion in this area, some indication of policy would be helpful. Suggest the following addition to item I:

Floating lift docks are acceptable as long as they conform to the length and width limits of the berth. Bottom-mounted lifts and lifts that rely on structural support from the dock or finger are not permitted. All lift dock installations must be approved in advance by the Marina Supervisor. The lift dock itself shall be registered as a vessel, and shall be subject to similar impound and disposal procedures.

J. Length of the vessel means the overall length of the vessel in the as-berthed configuration. The length includes bow and stern rails, rudders, boomkins, outboard motors and brackets, and mizzen booms (unless raised for berthing), and any other extensions. Length of the vessel may not exceed the length of the berth by more than two feet, and may be measured at any time. The length of a vessel may exceed the length of its berth by an amount determined by the Marina Supervisor to allow for safe navigation in the harbor up to a maximum of 20% of the length of the boat. No part of any vessel may at any time extend over any portion of any dock in the marina.

"Overall length" is a term of art in naval architecture and boat design that has a meaning very different from the meaning which the marina intends to apply. Suggest replacing "overall" with "extreme" to avoid ambiguity. Sailors are cheap (why do we sail? Because "the wind is free!") and can generally be counted on to resolve any ambiguity in their own favor. They will ignore the "includes pulpits and stern rails" part and put down the actual "overall length" as usually defined, because "overall length" is the smaller number and will save them money.

The wording should also clarify that an outboard motor in the tilted up or stowed position still counts. Tilted-up outboard motors are among the most likely objects to obstruct a marina fairway in a way that can cause damage to other boats. The present wording also leaves out bowsprits, undoubtedly the largest extension to overall length on the majority of sailboats where there is a significant discrepancy. And it leaves out stowed anchors on bow rollers, often the forward-most part of the vessel and arguably not part of the vessel itself, therefore open to self-serving misinterpretation if not specifically called out in this definition.

The sentence limiting overhang to two feet beyond the berth contradicts the next sentence, and should be deleted.

Also need to add the word "nominal" to "berth length." Actual berth lengths vary to some degree from the officially designated length of the berth, and there is no clear protocol in place for measuring actual berth length. This section should also clarify that fees are based on extreme length if greater than nominal berth length.

Suggest the following re-write:

Extreme length means the length from the extreme forward end of the vessel and all equipment to the extreme aft end of the vessel and all equipment. This measurement includes bow rail, bowsprit, anchor sprit or roller, stowed anchor, towing eye, stern rail, boomkin, boom, mizzen boom (unless hoisted for berthing), rudder, swim step, ladder, davits, hoisted dinghy, outboard bracket, and outboard or outdrive lower unit, including propeller. Outboards and outdrive lower units are to be measured in the tilted-up position if this is how they are normally positioned for berthing. Extreme length may be measured by the Marina Supervisor at any time.

The extreme length of a vessel may exceed the nominal length of its berth by an amount determined by the Marina Supervisor to allow for safe navigation in the harbor, up to a maximum of 20% of the nominal length of the berth. Fees shall be based on the nominal berth length or the extreme length of the vessel, whichever is greater.

No part of any vessel may at any time extend over any portion of any dock in the marina.

K. Vessels may not extend beyond the limits of the berth width.

L. No vessel may anchor in the marina without prior authorization from the marina supervisor.

M. No fires of any type are allowed in the marina, except in designated fire pits and barbecues and in properly and safely operated barbecues on the docks and vessels. (Ord. 6315-NS 2 (part), 1996)

6.20.170 Vessel traffic within the marina.

A. All vessels approaching or within the marina area must be operated in a safe and prudent manner and in no event shall the entrance to the marina be blocked by general boating activities or fishing.

B. The speed of any vessel within the marina breakwaters shall not exceed five miles per hour, and no person shall operate a vessel upon the waters of the marina in such a manner that the speed thereof creates an unnecessary or excessive wake.

C. No vessel shall be operated in such a manner as to interfere with the operation of another vessel. (Ord. 6315-NS 2 (part), 1996)

6.20.180 Swimming and/or underwater diving.. Prohibited activities

Change title to "Prohibited Activities"

A. It is unlawful for any person to swim, bathe, wade or windsurf in any portion of the marina except at Shorebird Park, and in the South Sailing Basin

B. Prohibited use of personal watercraft:

(1) No jetski or personal watercraft of any kind may be operated within 1,200 feet of the Berkeley shoreline except in the 200-foot wide access corridor for personal watercraft designated by the marina supervisor from a boat launch at the marina to a point further than 1,200 feet of the shoreline.

One of the primary intents of this provision is to keep PWC away from the anticipated park and open space uses in the North Basin, and clear of non-motorized small craft activity that may be encourged there.

The problem is that the entrance to the North Basin is almost exactly 2400 feet wide. Human ability to estimate distance is not very precise, and a PWC operator could very easily, acting entirely in good faith, estimate the width of the North Basin on the high side, and operate at speed within the area that the Ordinance intends to protect. PWC operators with some interest in interpreting the boundaries in their favor will push this much further.

Suggest increasing the distance to at least 2,000 feet, or even 3,000 feet (the approximate length of the fishing pier to the first break, so there will be a visible reference length to use). An even better solution would be to restrict all PWC operation east of 122 degrees 20 minutes of longitude (except in the access channel). This line appears on all nautical charts and passes right through the Berkeley Reef daymark, a very conspicuous landmark. Even without these easy references, GPS use is becoming common among PWC operators, and a longitude-based description will be widely understood.

The words "of any kind" should also be replaced with "as defined by this ordinance," because by many definitions kayaks and windsurfers are also "personal watercraft."

Suggest the following wording:

(1) No jetski or powered personal watercraft as defined by this ordinance may be operated east of 122 degrees 20 minutes longitude, except in the 200-foot wide access corridor for personal watercraft designated by the marina supervisor from a boat launch at the marina to a point further than 1,200 feet of the shoreline. The line of 122 degrees 20 minutes longitude is north-south line passing through the Berkeley Reef Daymark

(2) The access corridor shall be marked by buoys or designated by other means chosen by the marina supervisor, and the speed limit in the corridor shall be five miles per hour.

We're being very tough on them - 5 MPH Is a difficult speed for a PWC in waves. Ten or even 15 MPH would be okay once they're outside the marina. Suggest the following wording:

(2) The access corridor shall be marked by buoys or designated by other means chosen by the marina supervisor, and the speed limit in the corridor, once clear of the marina breakwaters, shall be fifteen miles per hour. PWC operation in this corridor shall be solely for the purpose of transiting through the restricted operation area, and no unnecessary maneuvers shall be performed.

(3) Signs summarizing relevant provisions of this section shall be erected at the location from which personal watercraft are permitted to launch, as provided in paragraph (B)(1)

(4) Boundaries. However, The restrictions imposed by this section shall not apply to the use of personal watercraft by Fire Department, Police Department, or Coast Guard personnel in the performance of search and rescue missions or other emergency or law enforcement operations.

C. Nothing in this section shall prevent a permittee or his/her authorized representative from working on his/her vessel under water at the vessel's berth.

6.20.190 Cruising vessels used as a residence.

Staying aboard a vessel three or more days and nights in any seven consecutive day/night period, on a continuing basis, or more than nine nights, consecutively or not, during any 30-day period, shall be considered residing on a vessel and is prohibited except as provided below. The marina supervisor will consider written requests for temporary use of a vessel for residency; for purposes of vacation, temporary or visitor's berthing, or extenuating circumstances or other reasonable use. Unauthorized use of a vessel as a place of residence may result in cancellation of the permit to berth vessel.

To provide additional security and assistance in emergency situations, the marina supervisor may designate a limited number of berths as residences. These berths will be dispersed throughout depending upon the total number of berths in a section, and will be subject to the following conditions:

A. The marina supervisor will grant residential privileges only for a cruising vessel minimum twenty-four feet in length, kept in good repair and in seaworthy condition. The vessels must not be permanently attached to the dock and must leave the marina waters at least once each one hundred eighty-day period.

B. Any emergency situation, unusual event, or violation of this chapter or any regulations promulgated hereunder noted by the permittee of a residence shall be reported to the marina supervisor.

C. Only a permittee with residential privileges and up to three other persons may use the vessel as a residence on a continuing basis. Persons who are not permittees may reside on the vessel only when a permittee is in residence. The marina supervisor is to be notified in writing of the names of all persons residing on the vessel. A cruising vessel may not be rented for residential purposes.

D. Residence privileges are not transferable with the sale of the vessel. Permittees who have residence privileges may purchase a new vessel and still retain these privileges, provided that a suitable berth for the new vessel is available, and the vessel otherwise meets the requirements in subsection A of this section.

E. The owner of a pet that creates a public nuisance will be required to remove the pet from the marina permanently.

F. Permission to use a vessel as a residence will be revoked if complaints are received by the marina supervisor of loud, boisterous, or inappropriate conduct that disturbs others, by those on board, or for violation of this chapter or the regulations promulgated hereunder.

G. The vessel must be equipped with a sink and marine head and must be equipped with a holding tank designed to retain all sewage from the marine head until these wastes can be discharged into a sanitary sewer system or otherwise discharged in accordance with law. The permittee shall allow the marina supervisor to inspect such holding tanks from time-to-time upon demand. No waste matter from marine heads, holding tanks or any other receptacles shall be discharged into the waters of the marina, and no waste or other matter shall be discharged or thrown into said water.

H. Permittees receiving residential privileges shall keep the area immediately surrounding their vessels in a sanitary and orderly condition in order to assure the preservation of the public health and safety. Failure of any person residing on a vessel in the marina to abide by these requirements shall be cause for revocation of the privilege of using such vessel for residential purposes.

I. Payments of berthing fees and all other residence related charges must be kept current. If any charges become delinquent for thirty-five days, the residence privilege will be revoked unless there are extenuating circumstances.

J. On June 30th and December 31st of each year, a permittee granted cruising vessel residence privileges must submit a log of his/her vessel's trips out of the marina and a log of the dates the holding tank pump-out station was used by the permittee.

K. Permittee must reside at least fifty percent of the year in his/her vessel or permit to use vessel as a residence will be revoked.

Now that there's a significant fee for live-aboard status, why do we need this? Suggest deletion.

L. All residence permittees and persons residing on board a vessel must obtain a permit from the marina supervisor to park his/her vehicle in a marina parking lot on a regular basis. (Ord. 6315-NS 2 (part), 1996)

6.20.200 Residential houseboats.

To provide additional security and assistance in emergency situations, the marina supervisor may designate a limited number of berths as residential houseboat berths. The vessels occupying these berths may have permanent sewer hookups and are subject to the following conditions:

A. Residential houseboat owners and renters shall have no right or power whatsoever to assign, sublet or sublicense any part of the houseboat or berth to any other party except a residential houseboat may be rented for no more than two months in any twelve-month period. The marina supervisor shall be given prior written notice, including names, of such rental. The marina supervisor may permit a residential houseboat to be rented for an additional four months if he/she determines there is good cause. If permission is denied, a permittee may appeal to the City Manager. All appeals must be filed with the marina supervisor within thirty days of the date of the notice of denial. Only an owner of a houseboat may be granted a permit to berth a residential houseboat.

B. Renters must abide by the rules and regulations set forth in this chapter, and any violations will result in appropriate action taken against the permittee in accordance with this chapter.

C. A residential houseboat cannot be replaced by another residential houseboat once a berth is vacated.

D. Permittees receiving residential houseboat privileges shall keep the areas immediately surrounding such residential houseboats in a sanitary and orderly condition in order to assure the preservation of the public health and safety. Failure of any person living on a residential houseboat in the marina to abide by such requirements shall be cause for revocation of the privilege of using such berth for residential purposes.

E. For purposes of health and safety, no external modifications which result in additions in overall height, width or length of the houseboat may be made without prior written approval of the marina supervisor.

F. No permittee may be granted more than one permit to berth a residential houseboat.

G. All permittees and persons residing on board a residential houseboat must obtain a permit from the marina supervisor to park his/her vehicle in a marina parking lot on a regular basis.

H. Only a permittee with residential privileges or a renter authorized by the marina supervisor pursuant to subsection A of this section and up to three other persons may use the residential houseboat as a residence on a continuing basis. Persons who are not permittees may reside on the vessel only when a permittee is in residence. In all cases, the marina supervisor is to be notified in writing of the names of all persons residing on the residential houseboat. (Ord. 6315-NS 2 (part), 1996)

6.20.210 Sanitary facilities.

Sanitary facilities (marina toilet, head, sinks, etc.) shall not be used while a vessel is in the marina unless the vessel is equipped with an approved or acceptable operating device for containment of sewage and gray water (i.e., holding tank). It is unlawful for any person to discharge or cause to be discharged any solid or liquid wastes (including bilge water, sewage or gray water) or other pollutants into the waters of the marina.

Vessels in the marina, and the areas immediately surrounding the vessel, shall be kept in a clean, neat and orderly condition at all times. (Ord. 6315-NS 2 (part), 1996)

6.20.220 Children in marina.

It is unlawful for any child under the age of sixteen years to go, remain, or be upon any of the docks, gangways, floats or vessels in the Berkeley Marina, unless such child is accompanied by a parent or other adult person, or unless such child has the written permission of the owner of any vessel located at the marina to go upon such vessel. Permanent written permission may be left on file with the marina supervisor. (Ord. 6315-NS 2 (part), 1996)

6.20.230 Fishing in marina prohibited--Unloading, cleaning and disposal of fish.

It is unlawful for any person to fish from any vessel, structure, float, dock or shoreline in the marina, the marina breakwaters or in the marina entrance. Fishing is allowed from the Berkeley Municipal Fishing Pier, and any other area so designated for fishing.

No fish caught with a commercial license may be unloaded within the marina other that at designated fish unloading areas. No person shall dispose of fish, fish parts or bait into any trash receptacle in the marina, or onto the marina waters or lands, from any shore, dock, float, gangway or vessel. Fish cleaning is not permitted on vessels, floats or any other area of the marina, except at designated fish cleaning areas. (Ord. 6315-NS 2 (part), 1996)

6.20.240 Damage and/or loss of property.

The owner of a vessel must assume all liability for loss to his/her vessel and any other property, while it is within the limits of the boundary of the marina. The City assumes no risk on account of fire, theft, act of God, or damages of any nature to vessels.. (Ord. 6315-NS 2 (part), 1996)

6.20.250 Vehicle or trailer parking in marina areas.

A. Permission from the marina supervisor must be obtained prior to parking any vehicle, trailer or boat in the parking areas within the marina area for a period exceeding seventy-two consecutive hours. If permission is not requested or granted, the vehicle, trailer or boat may be cited and removed from the marina area at the owner's expense.

B. Any vehicle, trailer, or boat/trailer combination parked in restricted areas, in limited parking areas beyond the allowed time, or in driveways, walks, or breezeways, may be cited and removed from the marina at the owner's expense.

C. The use of any vehicle for the sole purpose of storage while parked in the marina area is prohibited.

D. No person shall perform repairs to a motor vehicle anywhere in the marina except in an emergency.

E. Use of all bicycles, skateboards, roller skates and motor driven or sail-propelled vehicles, except wheelchairs for the disabled and City maintenance and police vehicles, is prohibited on any path, sidewalk, pier, dock, float or gangway in the marina, other than on paths so designated for their specific use. The use of any vehicle for eating or sleeping for over four hours per day while parked in the marina is prohibited. (Ord. 6315-NS 2 (part), 1996)

6.20.260 Overnight camping in marina land areas prohibited.

A. Use of marina land areas for overnight camping or sleeping is prohibited.

B. Use of campfires in the marina land areas other than in designated areas, without prior written permission of the marina supervisor, is prohibited. (Ord. 6315-NS 2 (part), 1996)

6.20.270 Solicitation and advertising.*

A. Solicitation of patronage for private or commercial business in the marina without a permit is prohibited pursuant to Berkeley Municipal Code Chapter 9.40 as amended from time to time.

B. The marina supervisor shall establish and maintain bulletin boards for posting commercial and noncommercial literature. Literature may not be posted in any other place within the marina except as designated by the marina supervisor.

C. No distribution of commercial or noncommercial literature (brochures, pamphlets or other material) is permitted in the marina area at any point more than six feet from any trash, litter or refuse receptacle. Such receptacle may be furnished by the distributor of the literature.

D. No person shall row, propel, navigate or maintain any vessel or float in the marina for the purpose of advertising.

E. No sign advertising commercial use of a vessel shall be displayed on any vessel, float, dock or other structure; except, however, that properly licensed commercial vessels operating from the marina on Dock K may have the vessel's name, telephone number and message displayed on the vessel. (Ord. 6315-NS 2 (part), 1996)

* For provisions on business licensing, see Chapter 9.04 of this code.

6.20.280 San Francisco Bay Conservation and Development Commission permit.

All persons using the marina shall comply with the provisions of BCDC Permit No. 5-79 granted to the City by the San Francisco Bay Conservation and Development Commission, as amended from time to time, and with any additional or successive permits as may be issued by said commission. Copies of said permit(s) and amendments thereto shall be available for inspection at the office of the marina supervisor during regular business hours. (Ord. 6315-NS 2 (part), 1996)

6.20.290 Notice.

Unless otherwise provided in this chapter, notice or communication given pursuant to this chapter shall be in writing, and may be delivered personally or be sent by first class mail, postage prepaid and deposited in the United States mail.

All notices to the marina supervisor shall be addressed as follows:

Berkeley Marina Supervisor
201 University Avenue
Berkeley, CA. 94710

All notices to permittee shall be addressed to the residence or business address shown on the application form for a permit to berth vessel as provided for in Section 6.20.030 of this chapter.

Notices and communications sent as provided above shall be deemed given when received by the party to whom addressed; provided, however, if sent by registered or certified mail, postage prepaid, and deposited in the United States mail, such notices and communications shall be deemed given three business days after being deposited in the mail. A party may change its address to which notices and communications are to be given by giving written notice thereof to the other party. (Ord. 6315-NS 2 (part), 1996)

6.20.300 Administrative regulations.

The City Manager is authorized to promulgate any rules and regulations necessary or appropriate to carry out the purpose and requirements of this chapter. (Ord. 6315-NS 2 (part), 1996)

6.20.310 Penalty.

Violations of this chapter are punishable as infractions as provided in the Berkeley Municipal Code Chapter 1.20. (Ord. 6315-NS 2 (part), 1996)

6.20.320 Appeals.

A. The Marina Supervisor and Marina Manager have full authority to interpret and enforce all the rules and regulations affecting the Marina. Their decisions and those of their designated representatives shall be final, except that such decisions shall be subject to appeal only when they result in (1) cancellation of a berthing permit, or (2) any other action for which an appeal is required in order to accord due process. All other actions shall be final and unappealable.

B. An individual directly affected by and who wishes to dispute a decision subject to appeal under paragraph (A) of this section may file a written appeal with the City Manager within 10 calendar days of the date notice of said decision is mailed by first class mail or equivalent means. To be considered, an appeal must be timely and comply fully with the requirements of paragraph (c) below. The City Manager, or his/her designee (hereinafter, City Manager) shall respond to appeals in writing within 10 calendar days of their receipt. Said response may take the form of a decision on the merits of the appeal, which shall be final when mailed or a decision to set a hearing on the appeal. In addition, the City Manager shall have the discretion, where in the City's best interests, to stay and/or modify further enforcement of the disputed decision, including without limitation the collection of fees, pending resolution of an appeal; however, any such interim stay or modification shall not impact other remedies, if any.

The filing time requirement is unclear. Is it the postmark or the date of receipt? If the appeal must be received by the City 10 days after notice is mailed by the City, there is very little margin for composing the appeal. As a practical matter, berthers' addresses on file are often from their original berth application, and are often not current. To be fair, the procedure needs to provide some mechanism for insuring that notices are received by the berther in time to allow compliance with these procedures.

More significantly, there seems to be no mechanism here for objective arbitration. The City Manager's office is clearly a representative of the City, and can hardly be considered an impartial arbitrator when a department of the City is a party to the dispute.

This does not read as if there is any attempt being made to give berthers a meaningful avenue of appeal. Every step is slanted in the City's favor.

C. Appeals must include

1. A heading in the words, "Appeal Pursuant to B.M.C. Chapter 6.20, Marina Appeals Procedure";

2. The names and mailing addresses of all parties to the appeal (appellant(s));

3. A signed and dated verification, by declaration under penalty of perjury, A brief statement, in ordinary and concise language, of the specific order or decision being disputed, together with any material facts claimed to support the appellant's contentions, including the affected vessel's registration or documentation number (state and/or federal, as appropriate);

(Item 4. is missing)

5. A brief statement setting forth each appellant's legal interest in the vessel(s) involved in the dispute, and including without limitation identification of all owners, part-owners, lessees, occupants, and anyone else known to have a financial interest in the vessel;

6. A copy of any written decisions of, correspondence with, Marina or other City staff, and any other relevant documentation, including permit(s), regarding the subject matter of the appeal;

7. A brief statement, in ordinary and concise language, of the relief sought, and the reasons why it is claimed the disputed order or decision should be reversed, modified, or set aside;

8. Any appeal fee authorized by the City Council.

9. If the notice provided pursuant to section 6.20.290 includes as a basis for the decision a determination that the vessel is not seaworthy, the appeal must also include a current vessel survey certified by a licensed marine surveyor.

Same comment as for 20.E.2. There is no clear meaning to the term "licensed surveyor."

D. Where a timely and complete appeal has been filed, the City Manger may, at his/her discretion, direct than an informal hearing be held, before a Hearing Officer to be designated by the City Manager. Notice of the time, place, and any other information the City deems necessary regarding such a hearing, if any is scheduled, shall be mailed to the appellant(s) not less than five business days prior to the time set for hearing. The formal rules of evidence shall not apply to such hearings. Witnesses, if any, shall be sworn, and each party shall have the right to cross-examine adverse witnesses. The Hearing Officer shall serve a written decision upon the appellant within 10 calendar days of the hearing, with a copy to the Waterfront Manager and the City Manager. The Hearing Officer's decision shall be final when mailed. Where the appeal includes a current vessel survey certified by a licensed marine surveyor, the Hearing Officer shall accept the conclusions of that survey.

Big trouble here. Whoever hires the surveyor will win.

E. Any person entitled to submit an appeal but who fails or chooses not to file an appeal as provided herein, or who files an untimely or incomplete appeal, or who fails to appear for any scheduled hearing regarding the appeal, waives any right to appeal a disputed decision of Marina staff. Only those matters or issues specifically raised by an appellant pursuant to these procedures shall be considered in the processing of his/her appeal.

F. The Provisions of Section 1094.6 of the California Code of Civil Procedure, as it may be amended from time to time, shall apply to the judicial review, if any, of a final decision made under this chapter; except that, where a shorter statute of limitations applies pursuant to state or federal law, it shall control.

6.20.330 Charter Vessels

A. A Charter vessels may use or operate from public docks in the Berkeley Marina only as set forth in this section and pursuant to a charter permit.

Need to define "public docks." Ferry dock only? Radisson Hotel docks? Yacht club guest dock? All berthing areas? Fuel dock? Docks that are part of Berkeley Marina Center? All docks subject to public access requirements set by BCDC?

B. Upon application therefor, the Marina Supervisor or Marina Manager may issue a charter permit. Charter permits shall require compliance with all applicable provisions of federal, state and City laws, ordinances and regulations, current commercial general liability insurance naming the City as additional insured in an amount not less than one million dollars (which amount shall be subject to adjustment by the Risk Manager) and payment of all fees and taxes required by City ordinances.

C1. Use of slips for charter vessels shall be in accordance with assignments made by Marina Supervisor or Marina Manager, who may establish procedures for orderly reservation, assignment and allocation of slips.

C2. Operators of charter vessels shall pay a slip use and passenger loading fee established by resolution of the City Council.

D. Operators of fishing charter vessels shall book their passengers through an agent designated by the Marina Manager and shall pay a booking fee to that agent not to exceed 5% of the total consideration for all passengers. Additionally, operators of charter fishing vessels shall purchase bait and rent fishing equipment only from an agent designated by the Marina Manager, unless such bait or fishing equipment is not available in timely manner from said agent.

It's not at all clear why one agent should have monopolistic control over bookings, bait supply, and equipment rental. Suggest deletion of this provision.

E. Charter vessels which use or operate from private docks in the Berkeley Marina shall pay a marina use fee established by resolution of the City Council. The purpose of said fee is to compensate the City for services and benefits provided to such vessels through maintenance and improvement of the Berkeley Marina and associated public facilities.

Why state the purpose of this fee, and no others? Better to leave it out, especially if a scrap over marina fees is anticipated with one or more charter boat operators. They might be able to argue that part of the fee is being used for a different purpose, or that these expenses are less than the fees collected.

Also need to define a "private dock" in the Berkeley Marina.

F. Upon three violations of this section within any 12-month period, the operator of a charter vessel shall be prohibited from operating any charter vessel in or from the Berkeley Marina for one year.

1. For purposes of this section, conviction of an infraction shall be conclusive evidence of violation.

2. In addition, for purposes of this section, conviction of an infraction shall be conclusive evidence of violation.

G. As used in this section, the following terms shall have the following meanings.

1. "Charter vessel" means any vessel used to carry passengers for consideration, direct or indirect.

"Indirect compensation" could be construed to include boats operated by non-profit organizations, especially those that give boat rides to the public. There needs to be a specific exemption for supported non-profits based in the Berkeley Marina.

2. "Fishing charter vessel" means a charter vessel which carries passengers for the purpose of fishing.

3. "Fishing equipment" means any gear required or used in order to fish.