HomeMy WebLinkAbout07 - Agreement with Sailing Fascination for Slip RentalCITY OF /[L�1� CE jj��I
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City Council Staff Report Agenda Item No. 7
April 9, 2013
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Community Development Department
Kimberly Brandt, AICP, Director
949 - 644 -3226, kbrandt @newportbeachca.gov
PREPARED BY: Seimone Jurjis, PE, CBO, Chief Building Official
Lauren Wooding, Real Property Administrator
APPROVED: A
TITLE: Agreement between the City of Newport Beach and Sailing
Fascination to Berth at the Balboa Yacht Basin, located at 829
Harbor Island Drive, and a Request for a Below Market Rental Rate
ABSTRACT:
Sailing Fascination has operated at a boat slip at the City owned Balboa Yacht Basin
since 1996. The last City approved agreement expired on January 22, 2005, with no
further extensions on record; the agreement included a waiver of the slip fee. A new
agreement is needed, and a fee waiver or reduction in the slip fee at below market
rates, requires City Council approval.
RECOMMENDATION:
1. Approve a five -year slip rental agreement with an annual rent of $1.00 per year
which is below fair market value, based on the findings contained in this staff
report and in the attached Slip Rental Agreement (Attachment CC 1), that
charging less than fair market value promotes the City's goals to provide an
essential or unique service to the community, that cannot otherwise be provided
if full market rates were charged. Specifically, the reduced rental rate promotes
public recreation facilities and marine services to the physically and intellectually
disabled public; and
2. Approve a waiver of City Council Policy F -7, and authorize the City Manager or
his /her designee to enter into an agreement (Attachment CC 1) with Sailing
Fascination.
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Agreement between the City of Newport Beach and Sailing Fascination
April 9, 2013
Page 2
REVENUE ACCOUNT:
The current adopted budget reflects no rental revenue from Sailing Fasination for Slip
B -1 at the Balboa Yacht Basin. Should City Council approve the new Slip Rental
Agreement (Attachment CC 1) with the proposed rental rate of $1.00 per year, the
revenue will be split between the General Fund account (2365 -5421) and the Tidelands
Fund account (2370- 5421).
DISCUSSION:
Tenant Backaround
Sailing Fascination is a 501(c)3 non - profit organization that provides free boating safety
and sailing lessons to students with disabilities. Founded in 1996, by Tom Tolbert and
Jack Hester, Sailing Fascination's program was modeled after other non - profit groups in
the United States and around the world, which promote that individuals with disabilities
have the capability to learn to sail, and should have access to programs that make
sailing accessible. Sailing Fascination received two grants from the California
Department of Boating and Waterways, and donations from other local businesses
which allowed them to purchase and outfit a J -24 sailboat for their purposes.
Staffed completely by volunteers, Sailing Fascination's annual operating expenses are
typically less than $5,000 and are funded by annual financial contributions from several
local foundations. Sailing Fascination provides their services free of charge to qualified
candidates. Most attendees are from local programs such as Orange County Special
Olympics teams, the Huntington Beach School District's Special Education Program,
Fairview Developmental Center, and other community organizations.
In 2007, Sailing Fascination formed a relationship with OASIS Sailing Club (OASIS),
which allowed the program to continue under the oversight of a new skipper, John
Byerlein. The relationship with OASIS also brings over 20 volunteer skippers to assist
the program on a rotating basis.
The program has graduated more than 500 students since its inception in 1996, and
sailed 78 times in 2012. In 2013, the program is scheduled to offer sailing lessons three
times per week. Each student typically sails on three or four consecutive weekly
outings, and then another student is rotated into the program. All of the crew skippers
have been evaluated and qualified before they are assigned a sailing, based on the
training elements and criteria of the OASIS Sailing Club's Mate and Skipper's Manual.
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Agreement between the City of Newport Beach and Sailing Fascination
April 9, 2013
Page 3
Marina Background
The City of Newport Beach owns the tidelands and uplands property, located at 829
Harbor Island Drive, and operates the Balboa Yacht Basin Marina where the boat,
Fascination2, is currently docked. Slip B -1 was assigned to the program in 1996, and is
ideal for use by the program due to its wider dock finger and short distance from the
ramp and parking lot, making it more accessible to wheelchairs, walkers, and students
that need physical support to get aboard the vessel.
All maintenance of the vessel is currently the responsibility of Sailing Fascination. As a
sailboat, the vessel does not require electricity.
Lease Histo
Sailing Fascination rented a slip at the Balboa Yacht Basin in August of 1996, and later
approached the City to request a waiver of slip fees for their program. A Contractor
Agreement (Attachment CC 2) between the City and Sailing Fascination was executed
on May 20, 1997, and the City Council approved the agreement and Sailing
Fascination's request for a slip fee waiver at its meeting on May 27, 1997. The
agreement ran for three years and included a list of duties, reporting, and operating
requirements to be performed by Sailing Fascination. The Contractor Agreement
expired on May 20, 2000. A new Vessel Mooring Agreement (Attachment CC 3) was
approved January 22, 2002, by City Council and the agreement subsequently expired
on January 22, 2005. No further agreements have been approved since that time.
Sailing Fascination appears to be well staffed and organized, meeting the objectives
and requirements included in the Contractor Agreement (Attachment CC 2) executed
between the City and Sailing Fascination in 1997.
Entering into a new Slip Rental Agreement with Sailing Fascination would allow staff to
track and administer the objectives and requirements outlined below and to insure that
proper insurance and indemnity is provided by Sailing Fascination for their operation
and for the premises.
Leasing Amount
At the current slip rental rate (effective March 1, 2013) of $28.57 per linear foot per
month, a 37 -foot slip, such as slip B -1 would rent for $1,057.09 per month. Should the
City continue to waive the fee for the slip rental, the loss of revenue will be $12,685.08
per year. Adjustments to the slip rental rates for this City -owned marina are scheduled
for July 1, 2013, and annually thereafter, on July 1; rates will be set in accordance with
100 percent of the rates established by the Marina Index pursuant to Resolution 2010-
134 adopted by the Newport Beach City Council on December 6, 2010.
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Agreement between the City of Newport Beach and Sailing Fascination
April 9, 2013
Page 4
Sailing Fascination has stated that they cannot afford to pay the current slip rental rates
for use of the slip at the Balboa Yacht Basin and requests to continue to receive a fee
waiver for the entire slip rental rate amount.
The slip fee proposed under the Slip Rental Agreement is for less than fair market value,
which requires City Council to make appropriate findings. Staff recommends that City
Council specifically finds that the charging of less than fair market value slip fees for this
use promotes public recreation facilities and marine services to the physically and
intellectually disabled public and furthers the policies and objectives of the Tidelands
Grant. Additionally, charging less than fair market value slip fees for these uses allows for
continued operation and improved accessibility to the physically and intellectually disabled
public. Thus, the charging of less than fair market value slip fees for these uses of the
Tidelands is a matter of state -wide concern that benefits the citizens of the State of
California. Pursuant to City Council Policy F- 7(E)(5), the City Council further finds that the
charging of less than fair market value slip fees promotes the goals of the City to provide
an essential or unique service to the community that might not otherwise be provided were
full market value of the property required.
Summary of Proposed Agreement
The proposed terms of the Slip Rental Agreement are summarized below:
The term of the agreement will be for five years unless terminated as provided by
the agreement with one five -year option.
2. In lieu of the payment of full rent during the agreement term Sailing Fascination
will provide instruction to a minimum of forty (40) disabled sailors per year, free of
charge.
3. Sailing Fascination will provide a certificate of insurance to the satisfaction of the
City's Risk Manager, naming the City as additional insured.
4. Sailing Fascination will maintain complete and accurate records so that the City
can determine if the services are being performed as agreed, and if this is not the
case, the City may terminate the agreement with thirty (30) days notice to Sailing
Fascination at which point they must remove their boat from the Balboa Yacht
Basin.
5. Rent shall be set at $1.00 per year.
This agreement has been reviewed by the City Attorney's office and has been approved
as to form.
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Agreement between the City of Newport Beach and Sailing Fascination
April 9, 2013
Page 5
ENVIRONMENTAL REVIEW:
This action is not subject to the California Environmental
to Sections 15060(c)(2) (the activity will not result in a d
indirect physical change in the environment) and 15C
project as defined in Section 15378) of the CEQA (
Regulations, Title 14, Chapter 3, because it has no pc
change to the environment, directly or indirectly.
NOTICING:
Quality Act ( "CEQA ") pursuant
-ect or reasonably foreseeable
30(c)(3) (the activity is not a
uidelines, California Code of
ential for resulting in physical
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).
Submitted by:
Kimberly Brand ; AICP
Director
Attachments: CC 1 - Slip Rental Agreement
CC 2 - Contractor Agreement, executed on May 20, 1997
CC 3 - Vessel Mooring Agreement, executed on January 22, 2002
CC 4 - City Council Policy F -7 — Income Property
15
City Council
Attachment 1
Slip Rental Agreement
7
BALBOA YACHT BASIN
829 Harbor Island Drive
Newport Beach, CA 92660
949 - 673 -0360
SLIP RENTAL AGREEMENT
THIS SLIP RENTAL AGREEMENT ( "Agreement ") is made as of this April , 2013 by and between the
CITY OF NEWPORT BEACH, a California municipal corporation and charter city ( "City') and
Sailing Fascination, a California non -profit corporation ( "Vessel Owner"); if more than one (1), each shall be
jointly and severally liable and all are collectively referred to as "Vessel Owner" herein. Vessel Owner must be
the legal owner of the Vessel, or such owner's registered agent.
City hereby grants Vessel Owner a limited license and permission to moor its vessel at THE BALBOA YACHT
BASIN ( "Basin ") in Slip No. BB -11 and Vessel Owner hereby agrees to accept the Slip, defined herein, for the term
specified, subject to all of the terms and provisions set forth below:
OWNER
Name(s): Sailing Fascination
If Vessel Owner is a corporation or other
Name of Registered Agent in California:
Residence Address:
Business Address:
Billing Address:
9224 Residencia, Newport Beach, CA 92660
9224 Residencia. Newoort Beach. CA 92660
Telephone: Home #: (949) 640 -1678 Business #: (949) 640 -1678 Cell #: (949) 413 -7379
E -mail Address: tomorninagcox.net
Social
Driver's License Info: State: CA Number: P0592412 Security /EIN 33- 0703660
Emergency Contact Name: Tom Tolbert
Legal Owner of Vessel:
Bank, Uenholder, or o0ier name appearing on evidence of lille
Emergency Phone #: (949) 640 -1678
Sailing Fascination
2. VESSEL DESCRIPTION
Vessel Name: Fascination2 Reg. CF /Doc. No.: CF 9463SP
( "Vessel") Please provide a copy of current Documentation/Registration for file.
Type (Power /Sail): Sailboat Builder: J (Jacobson —J24)
Total Length: 24 feet Beam: A rox. 8 feet Draft: Approx. 4 feet
(including bov,pril, boom, boomkin, pulpit, swim slop, boartling step oulboard(s), outdrive(s), davils /dinghy In davits, etc.)
Page 1 of 17 9
Port/State of Registration: Newport Beach, California
Insurance Carrier: Travelers
Insurance Agent: Starkweather & Shipley Insurance, Inc.
Phone M _(401) 596 -2212 Insurance Policy #: ZOH14R2841312ND Expiration Date: 05/07/2013
*Please provide a copy of current insurance certificate for file.
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Vessel Owner agrees to give City written notice of any change in any of the above information within five
(5) days after the occurrence of any such change.
Vessel Owner agrees to produce evidence of licensing, registration and insurance coverage for the
Vessel and provide copies of such certificates for the City's files when such coverage or registration are
changed or renewed or at the City's request. A photocopy of the current year's registration is to be
received by the City no later than March 31 r of each year.
DEFINITION AND TERMS
Slip No.: B -1 ( "Slip ")
Tenn: Five (5) years, commencing on the
ending on the day of , 2018.
Annual Slip Fee: $1.00 ( "Slip Fee ")
Key Deposit: N/A # of Keys:
4. CITY
Notices to the City shall be sent to:
5.
City of Newport Beach
Lauren Wooding, Real Property Administrator
100 Civic Center Drive
PO Box 1768 .
Newport Beach, CA 92658
TERM
Slip Length: 37 feet
day of , 2013 ( "Commencement Date ") and
N/A
Total Key Deposit:
N/A
This Agreement shall be for a term of five (5) years ( "Initial Term "), plus any partial month if the
Commencement Date is on a date other than the first day of a calendar month.
Provided Vessel Owner is not then in default, and upon approval by the City, Vessel Owner may
extend the term of this Agreement for an additional five (5) years ( "Option Term ") commencing on
expiration of the Initial Term, on the same terms and conditions as contained in this Agreement.
Vessel Owner must exercise the option by giving the City written notice of its intention to do so at least
three (3) months prior to the expiration of the Initial Term.
Upon expiration of the Term, if and as extended, the Agreement shall continue on a month -to -month
basis until a new agreement can be reached, unless sooner terminated. City may terminate this
Agreement without cause and in Cily's absolute discretion, by providing thirty (30) days prior written
notice to the Vessel Owner.
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6. PAYMENT OF FEES
(a) In lieu of fair market value slip fees for the Tern of this Agreement, Vessel Owner agrees to pay
the Slip Fee of One Hundred Dollars and 00/100 ($100.00) per month and shall provide boating
safety and sailing instructions to a minimum of forty (40) physically and /or intellectually disabled
Individuals per year. This Instruction will be provided free of charge and shall conform to the
curriculum outline attached hereto as Exhibit 1 and incorporated herein by this reference.
(b) The Slip Fee charged under this Agreement is for less than fair market value. The City Council
specifically finds that the charging of less than fair market value Slip Fees for this use promotes
public recreation facilities and marine services to the physically and intellectually disabled public
and furthers the policies and objectives of the Tidelands Grant. Charging less than fair market
value slip fees for these uses allows for continued operation and improved accessibility to the
physically and intellectually disabled public. Thus, the charging of less than fair market value Slip
Fees for these uses of the Tidelands is a matter of state -wide concern that benefits the citizens
of the State of California. Pursuant to City Council Policy F- 7(E)(5), the City Council further finds
that the charging of less than fair market value Slip Fees promotes the goals of the City to
provide an essential or unique service to the community that might not otherwise be provided
were full market value of the property required.
(c) Payments shall be malled to or made In person at the City's Finance Office at 100 Civic Center
Drive, P.O. Box 1768, Newport Beach, CA, 92658 or at any such other place as may from time to
time be designated by City in writing. The Slip Fee for the first full or partial calendar month of
the Tenn shall be paid to City by Vessel Owner concurrently with the execution of this
Agreement. All Slip Fees are payable In advance and all fees and charges are due by the first
(1") of the month and delinquent on the fifteenth (15'") of the month. Upon not less than sixty
(60) days' prior written notice to Vessel Owner, City may alter, at any time, the amount of Slip
Fees, Late Fee, Returned Check Fees, and/or Key Deposit payable under this Agreement.
7. LATE PAYMENTS
Any Slip Fee or other sum due under this Agreement that is not paid to City when due shall be
charged ten percent (10 %) Interest per month as a late fee, from the date due until fully paid ( "Late
Fee "). In addition, Vessel Owner acknowledges that such late payment will cause City to incur costs
not contemplated by this Agreement, the exact amount of which will be extremely difficult and
Impracticable to ascertain. If an account is processed for collection or lien due to late payments, an
addllional charge of thirty percent (30 %) of the amount due will be assessed against Vessel Owner. If
Vessel Owner does not pay the Slip Fee when due two (2) or more times during the tern of this
Agreement, City may, at Citys sole discretion, require Vessel Owner to enroll in City's Automatic
Payment Processing ( "APP ") program to ensure Vessel Owner's timely payment. If Vessel Owner
refuses to enroll in City's APP program, City may, at City's sole discretion, immediately terminate this
Agreement.
A Twenty-Five Dollar and 00/100 ($25.00) fee will be assessed against Vessel Owner for the first (1s)
returned check. Any additional returned checks in the same calendar year shall be assessed a Thirty-
Five Dollar and 00/100 ($35.00) fee (collectively, "Returned Check Fees ").
9. KEY DEPOSIT
In addition to the Security Deposit, Vessel Owner shall also deliver to City, upon execution hereof, a Key
Deposit in the initial amount set forth in Section 3 above, which shall be held by City as security for the
key /access card to the Basin provided to Vessel Owner. The Key Deposit shall be refundable to Vessel
Owner when such access device is returned to City upon termination of this Agreement. The Key
Deposit shall be permanently retained by City in the event the access device is lost or damaged by
Page 3 of 17 11
Vessel Owner, in which event Vessel Owner shall be required to deliver to City an additional key deposit
In the amount then- currently charged by City for a replacement access device.
10. CONDITIONS OF USE
Vessel Owner shall perform and abide by each and every condition of use contained in this Agreement
and the attached Rules and Regulations. At all times, Vessel Owner shall comply with all laws, rules and
regulations of federal, state, and local entitles, including, but not limited to, municipal codes,
environmental laws and regulations and all regulations of the U.S. Coast Guard. Vessel Owner shall not
cause or allow the Slip to be used for any purpose other than the mooring or berthing of the specific
Vessel described in Section 2 above, and for other uses consistent with this Agreement.
(a) Liveaboards. No person, including Vessel Owner, shall live aboard the Vessel while the Vessel is
moored at the Basin. A person shall be deemed to be living aboard the Vessel if such person
occupies the Vessel for more than seventy-two (72) hours per month. Living aboard the Vessel
and /or providing false information with regard to live- aboard status shall be grounds for
immediate termination of this Agreement and all privileges at the Basin.
(b) Discharge of Waste /Hazardous Waste.
(i) No substance or material of any kind, including without limitation, waste matter from
sinks, toilets, marine heads, holding tanks, bilges, or any other receptacles shall be
discharged into the waters of the Basin. If the Vessel is equipped with a toilet, a marine
head, or any other permanent or temporary receptacle for human body wastes, then the
Vessel must be equipped with a holding tank deslgned to retain all contents deposited In
the receptacle until such time as the contents can be discharged into a sanitary sewer
system or discharged otherwise in accordance with law. All sewage systems on Vessel
must meet U.S. Coast Guard guidelines and must be locked "shut" while Vessel is
berthed at the Basin. Vessel Owner hereby agrees to permit City to deposit dye tablets
into and to inspect such holding tanks from time to time upon demand by City. Vessel
Owner shall not release or permit to be released into the water or upon the docks or land,
by action or inaction, any waste or environmentally objectionable substances including,
but not limited to, oil, paint or gasoline. Vessel Owner shall immediately report any
release to all appropriate government agencies and to the Basin Manager, and shall
immediately implement necessary clean up and disposal of any waste. Vessel Owner
shall be responsible for the prompt payment of all costs associated with clean up and
disposal including costs of absorbent pads and booms, oversight by government
agencies and Harbor Resources personnel, fines, penalties and legal fees. If City is not
satisfied, at City's sole discretion, with Vessel Owner's actions in reporting and cleaning
up a release, City may take any and all action it deems appropriate. Vessel Owner shall
be liable for all costs and expenses associated with the City's actions which shall be
payable to the City immediately upon receipt of an invoice from the City.
(ii) Vessel Owner shall not engage in any activity at or about the Basin that violates any
Environmental Law (as defined below), and shall promptly, at Vessel Owners sole cost
and expense, take all investigatory and/or remedial action required or ordered by any
governmental agency or Environmental Law for clean up and removal of any
contamination involving any Hazardous Material created or caused directly or indirectly by
Vessel Owner. The term "Environmental Law" shall mean any federal, state or local law,
statute, ordinance or regulation pertaining to health, industrial hygiene or the
environmental conditions on, under or about the Basin, including, without limitation, (i) the
Comprehensive Environmental Response, Compensation and Liability Act of 1980
( "CERCLA "), 42 U.S.C. Sections 9601 et seq.; (ii) the Resource Conservation and
Recovery Act of 1976 ( "RCRA" ), 42 U.S.C. Sections 6901 et seq.; (iii) California Health
and Safety Code Sections 25100 et seq.; (iv) the Safe Drinking Water and Toxic
Enforcement Act of 1986, California Health and Safety Code Section 25249.5 at seq.; (v)
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California Health and Safety Code Section 25359.7; (vi) California Health and Safety
Code Section 25915; (vii) the Federal Water Pollution Control Act, 33 U.S.C. Sections
1317 et seq.; (viii) California Water Code Section 1300 et seq.; and (ix) California Civil
Code Section 3479 et seq., as such laws are amended and the regulations and
administrative codes applicable thereto. The term "Hazardous Material" includes, without
limitation, any material or substance which is (i) defined or listed as a "hazardous waste ",
"extremely hazardous waste ", "restrictive hazardous waste" or "hazardous substance" or
considered a waste, condition of pollution or nuisance under the Environmental Laws; (ii)
petroleum or a petroleum product or fraction thereof; (iii) asbestos; and /or (iv) substances
known by the State of California to cause cancer and /or reproductive toxicity. It is the
Intent of the parties hereto to construe the terms "Hazardous Materials" and
"Environmental Laws" in their broadest sense. Vessel Owner shall provide prompt written
notice to City of the existence of Hazardous Materials maintained by Vessel Owner at the
Basin and all notices of violation of the Environmental Laws received by Vessel Owner.
(c) Signs. No signs for the purpose of advertising or display, including but not limited to "For Sale"
and brokerage signs, shall be placed on the Vessel or the dock.
(d) Overhangs. No part of the Vessel shall at any time extend over any portion of any dock at
Balboa Yacht Basin. No Vessel or part of the Vessel may extend more than ten percent (10 %) of
the length of the Slip beyond the end of the Slip. Additionally, the beam (width) of the Vessel
may not exceed, In any area of the Vessel, more than ninety percent (90 %) of the width of the
Slip and must allow for installation of adequate bumpers and appropriate other dock/vessel
protection.
(e) Securing Vessel. At all times during which the Vessel is berthed at the Slip, Vessel Owner shall
cause it to be safely and properly secured to its berth in a manner acceptable to City. In case of
an emergency, City is authorized to do whatever City deems appropriate, including boarding the
Vessel, moving the Vessel, utilizing auxiliary pumps or taking any other action. If City deems it
necessary to re- secure the Vessel for any reason, Vessel Owner agrees to pay City a reasonable
service charge for doing so plus the cost of all materials used therefor. However, City assumes
no responsibility for the safety of the Vessel and Vessel Owner agrees to release City, and hold
City harmless, from any liability for damage to the Vessel, its equipment, and /or any property in
or on the Vessel, by reason of Citys efforts to re- secure said Vessel or City's decision not to re-
secure Vessel.
(f) Condition of Slip. Vessel Owner hereby acknowledges that Vessel Owner has Inspected the Slip
and those portions of the Basin associated with the Slip, Including, without limitation, the floats,
walks, gangways, ramps and utilities, and knows the condition of the same, hereby accepts the
same in their existing condition "As Is" and agrees that no statement, representation or warranty
as to their condition has been made by the City. City does not warrant that the utility services will
be compatible with the utility service requirements of the Vessel, including electrical
interconnection and polarity or effect of electrolytic action on the Vessel.
(g) Vessel Owner's Care of Mooring and Docks. Vessel Owners shall not store or Install any lockers
or boxes, small boats, dinghies, skiffs, bait tanks, boat gear, racks, power lines, water hoses or
other personal property whatsoever at the Slip (other than aboard the Vessel), or on the docks or
gangways adjacent to the Slip. Vessel Owner shall keep the Slip, docks and gangways in a neat,
clean and orderly condition, free and clear of all such items other than approved power lines and
water hoses in use connected to proper receptacles at the Slip. No wheels, fenders, rubbing
strips or other cushioning devices may be attached to a dock for the purpose of protecting hulls,
without the prior written approval of City. No alterations may made to the docks by the Vessel
Owner. No flammable, combustible or otherwise hazardous materials shall be stored or left on
the docks, including in approved dock boxes and lockers, in the Basin. Vessel Owner agrees to
promptly make a written report to City of any conditions existing on or about the Basin which
Page 5 of 17
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Vessel Owner believes to be a dangerous condition or which might develop into a dangerous
condition.
(h) Commercial Enterprise. Vessel Owner will not conduct or allow the Vessel to be used for any
commercial enterprise, including, but not limited to, the chartering of Vessel, during the existence
of this Agreement without the prior written approval of City.
(1) Guests. Vessel Owner shall be responsible for the conduct and control of all guests, agents,
contractors, employees, hired personnel and other invitees (collectively, "Guests ") while at the
Basin. City reserves the right to regulate entry into the Basin by yacht brokers, contractors and
yacht service personnel, and City may require written authorization from Vessel Owner. City may
take reasonable steps to ascertain that persons aboard the Vessel are authorized by Vessel
Owner to be aboard.
(j) Change of Slip. City reserves the right to move or to require a Vessel Owner to move the Vessel
from the Slip to another slip within the Basin, either temporarily or permanently, at any time for
any reason whatsoever, Including, without limitation, for construction, emergency, safety or other
operational reasons. Vessel Owner hereby grants City permission to board the Vessel for said
purpose. Vessel Owner agrees to release the City and Its officers, agents or employees from
any liability for loss or damage resulting or alleged to result from any such movement of the
Vessel or from any failure to move the Vessel.
(k) Assignment and Subletting. This Agreement grants to Vessel Owner a limited personal right,
without any possessory interest, to berth the Vessel. Accordingly, Vessel Owner shall have no
right or power to assign this Agreement or sublet the Slip or any part thereof to any other person
or party whatsoever for use by any other vessel whatsoever. No attempted transfer or
assignment, whether voluntary or involuntary, by operation of law, under legal process or
proceedings, by receivership, in bankruptcy, or otherwise, and no attempted subletting, shall be
valid or effective, but shall automatically terminate this Agreement. If any vessel other than the
Vessel described in Section 2 is moored at the Slip at any lime, unless such vessel is moored
pursuant to a Temporary Slip Agreement with the City during that period of time in Vessel
Owner's notification pursuant to Section 10(I) below, it shall constitute an Immediate breach of
this Agreement, and City may, at its option, without waiving any other remedies it may have,
immediately terminate this Agreement upon written notice to Vessel Owner.
(1) Use of Space by City. Vessel Owner shall notify City, in writing, when Vessel Owner expects the
Vessel to be away from the Slip for periods in excess of thirty (30) days. Such notification shall
include the date the Vessel will leave the Slip and the date the Vessel will return. City shall have
the right to allow use of the Slip by another vessel on a temporary basis without liability, credit or
compensation to Vessel Owner during such periods. If Vessel Owner returns prior to the
scheduled return date, City shall have the right to supply a substitute slip to Vessel Owner.
(m) Extended Vessel Absence.
(i) Vacancy without Notice: Continuous vacancy of the Slip for more than thirty (30) days is
conclusively presumed to constitute both an abandonment of the Slip by Vessel Owner
and an Immediate termination of this Agreement, unless Vessel Owner notifies City of its
Intent to temporarily remove the Vessel from the Slip pursuant to Section 10(1) above, and
of Vessel Owner's intention to maintain this Agreement in full force and effect.
(ii) Continuous Vacancy: This Agreement shall automatically terminate without notice to
Vessel Owner If the Vessel does not occupy the Slip for six (6) consecutive months.
(n) Balboa Yacht Basin Rules and Regulations. Vessel Owner agrees to use the Slip and the Basin
in accordance with City's Rules and Regulations, which, by this reference, is made a part hereof.
In the event of a conflict between said Rules and Regulations and this Agreement, the terms of
Page 6 of 17 i4
this Agreement shall apply. City reserves the right to modify its Rules and Regulations from time
to time and Vessel Owner agrees to comply with all such modified Rules and Regulations.
Vessel Owner further agrees to comply with all laws, ordinances, rules, regulations and orders of
any government authority with respect to the Slip and the Basin. Should any fine be assessed
against Vessel Owner and /or City due to any failure by Vessel Owner or Its Guests to comply
with the provisions of this Section, Vessel Owner shall be solely responsible therefor and shall
pay same within five (5) days following demand.
(o) Electrici . Electricity shall be supplied to the Slip and shall be billed to Vessel Owner on a
monthly basis.
(p) Taxes. Licenses and Other Obligations.
(i) Payment of Taxes. Vessel Owner acknowledges that this Agreement may create a
possessory interest subject to taxation. Vessel Owner shall pay, before delinquency, all
taxes, assessments, license fees and other charges ("Taxes ") that are levied or assessed
Vessel Owner's interest in this Agreement or any fixture, improvement, equipment and
other property In and around the Slip. Vessel Owner shall pay directly to the appropriate
taxing authorities all Taxes at least ten (10) days before delinquency and before any fine,
interest or penalty is due or imposed by operation of law. At City's request, Vessel Owner
shall provide City with proof of payment of Taxes. Vessel Owner shall not be required to
pay any Taxes based on Citys ownership interest in the Slips.
(ii) Payment of Obligations. Vessel Owner shall promptly pay, when due, any and all bills,
debts, liabilities and obligations incurred by or charged to Vessel Owner in connection
with Vessel Owner's occupation and use of the Slip. However, the provisions of this
subsection shall not prevent Vessel Owner from contesting the validity of any lien, claim
or demand, provided that in such event, Vessel Owner shall, at Its expense, defend itself
and City against the same and shall pay and satisfy any adverse judgment that may be
rendered before enforcement against City or the Slip.
(iii) Challenge to Taxes. Vessel Owner shall have the right in good faith, at its sole cost and
expense, to contest the amount or legality of any Taxes including the right to apply for
reduction_ If Vessel Owner contests payment of Taxes, Vessel Owner's failure to pay the
Taxes shall not constitute a default as long as Vessel Owner complies with the provisions
of this Section. City shall not be required to join in any proceeding or contest brought by
Vessel Owner unless the Law requires joinder of the City and in that case City shall join in
the proceeding, permit it to be brought in City's name and shall execute any necessary or
appropriate document necessary so long as City is not required to bear any cost or
liability for payment of Taxes. Vessel Owner shall, on final determination of the
proceeding or contest, immediately pay such disputed tax and also discharge any
decision or judgment rendered, together with all related costs, charges, interest and
penalties and provide City with proof of Vessel Owner's payment. Vessel Owner shall
Indemnify and hold harmless the City and its officers and employees from and agalnst
any liability, claim, demand, penalty, cost or expense arising out of or in connection with
any contest or proceeding prosecuted by Vessel Owner pursuant to this Section.
11. INSURANCE
Without limiting Vessel Owner's indemnification of City, Vessel Owner will obtain, provide and
maintain at Its own expense during the Term of this Agreement, a policy or policies of Insurance of the
type, amounts and form acceptable to City. The policy or policies shall provide, at a minimum, those
items described in Exhibit 2, attached hereto and incorporated herein by reference.
Page 7 of 17 15
12.
To the fullest extent permitted by law, Vessel Owner shall indemnify, defend and hold harmless City,
its City Council, boards and commissions, officers, agents and employees (collectively, the
"Indemnified Parties ") from and against any and all claims (including, without limitation, claims for
bodily Injury, death or damage to property), demands, obligations, damages, actions, causes of
action, suits, losses, judgments, fines, penalties, liabllities, costs and expenses (including, without
limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever
(individually, a Claim; collectively, "Claims "), which may arise from or in any manner relate (directly or
Indirectly) to this Agreement; the damage or destruction to the Slip, Basin, or any part thereof or any
vessel in the Basin resulting from any operation or movement of Vessel; and /or Vessel Owner's (or its
principals, officers, agents, employees, vendors, suppliers, consultants, subcontractors, Guests,
anyone employed directly or indirectly by any of them, or any person on the Vessel, the Slip or Basin
claiming to be present through or under the permission or authority of Vessel Owner or for whose acts
they may be liable or any or all of them) breach of any term of this Agreement, negligence, willful acts,
failure to comply with any law, rule and /or regulation of a federal, state, and /or local entity, failure to
comply with any of the attached Rules and Regulations, and /or other acts or omissions including, but
not limited to, Claims related to Improperly connecting electrical service from the common outlet to the
Vessel, failure to turn off electrical, water or other utility appliances or lights when not in use, and/or
littering of the Slip or adjoining water or common areas.
Notwithstanding the foregoing, nothing herein shall be construed to require Vessel Owner to indemnify
the Indemnified Parties from any Claim arising from the active negligence or willful misconduct of the
Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's
fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims
and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a
limitation upon the amount of indemnification to be provided by the Vessel Owner.
13. DAMAGE AND DESTRUCTION
(a) Vessel Owner's Obligation. Vessel Owner hereby agrees to pay on demand all reasonable costs
of repair or restoration resulting from any damage or destruction to the Slip, Basin and any part
thereof, or any vessels in the Basin resulting from any operation or movement of the Vessel or
any other act or omission of Vessel Owner and or any person on the Vessel or the Slip claiming
to be present through or under the permission or authority of Vessel Owner, including without
limitation, damage or destruction resulting from improperly connecting electrical service from the
common outlet to the Vessel, failure to turn off electrical, water, or other utility appliances or lights
when not in use, and littering of the Slip or adjoining water and common areas.
(b) Effect of Damage or Destruction. In the event of damage to or destruction of the Basin or the
Slip by fire, wind, flood, storm movement of water, accumulation of silt, earthquake, tidal wave or
any other cause or causes, whether immediate or over a period of time, City shall have the option
to:
(i) Treat this Agreement as continuing and repair or restore the Basin or Slip to its condition
before such damage or destruction occurred within thirty (30) days of the occurrence of
the same or, if Insured, within thirty (30) days after City received permission from the
insurer to proceed with repair or restoration; or
(ii) Terminate this Agreement and all further obligations hereunder of either party by written
notice to Vessel Owner.
After the occurrence of such damage or destruction, the Vessel Owners obligation to pay Slip
Fees hereunder may be abated in an amount which City, in its sole discretion, shall determine to
be proportionate to the area of the Slip rendered unfit for use by Vessel Owner during the period
of repair or restoration. All repairs or restoration must be completed within thirty (30) days of the
Page 8 of 17 10
damage or destruction, must be approved by the City and must be completed in a manner
acceptable to the City.
14. WASTE, QUIET ENJOYMENT
Vessel Owner shall not commit or permit any waste upon the Slip or any nuisance or other act or thing
which may disturb the quiet enjoyment of any other vessel owner or person in or about the Basin.
Violation of this provision shall be grounds for immediate termination of this Agreement at the option
of City. Vessel Owner shall not use in any wasteful, unreasonable or hazardous manner, any of the
utilities furnished by the City.
15. LIMITATIONS ON CITY'S LIABILITY
(a) Injury. Loss or Damage. Vessel Owner agrees that City, its City Council, boards, commissions,
directors, officers, officials, employees, volunteers and agents shall not be liable for any injury,
including death, to Vessel Owner or any person, caused by any use of the Slip or the Basin, or
arising from any accident, fire or casualty thereon or from any other cause whatsoever, nor shall
City, Its City Council, boards, commissions, directors, officers, employees, volunteers and agents
be liable for any loss of, or any damage to, any property or article belonging to Vessel Owner.
(b) Other Limitations. Vessel Owner also agrees that City shall not be liable for, and this Agreement
shall not be terminated by, any Interruption or interference with services or accommodations due
Vessel Owner caused by strike, riot, orders or acts of public authorities, acts of other vessel
owners, accident, the making of necessary repairs to the Basin, or any other cause beyond City's
control.
16. DEFAULT
The occurrence of any one or more of the following events shall constitute a material default and
breach of this Agreement by Vessel Owner:
(a) The vacating or abandonment of the Slip by Vessel Owner;
(b) Failure of Vessel Owner to make any payment of Slip Fees or any other payment required to be
made by Vessel Owner hereunder as and when due where such failure shall continue for a
period of three (3) days after written notice thereof from City to Vessel Owner.
(c) Failure by Vessel Owner to observe or perform any of the covenants, conditions and terms of this
Agreement to be observed or performed by Vessel Owner other than described in (b)
Immediately above, where such failure shall continue for a period of seven (7) days after written
notice thereof from City to Vessel Owner.
17. REMEDIES FOR DEFAULT
(a) Possessory Lien. By execution of this Agreement, Vessel Owner acknowledges that pursuant to
Harbors and Navigation Code Sections 491, 501 and /or the Federal Maritime Lien Act (46 U.S.C.
Sections 31301 at seq.) and by the terms of this Agreement, City shall have a lien on the Vessel
for money, which may become due under this Agreement. Pursuant to said statutory lien and the
terms of this Agreement, City has the right to take possession and control of the Vessel, secure
the Vessel to the Slip, remove the Vessel from the Slip, and/or store the Vessel at a location of
the Citys choosing. So long as City continues to hold the Vessel, Vessel Owner shall be
deemed to be responsible for all continuing charges and expenses..
(b) Other Remedies, If Vessel Owner fails to pay Slip Fees, cost of repair or restoration or other
charges to be bome by Vessel Owner or, in the event of any other default of this Agreement by
Vessel Owner, City may, at its option, regard this Agreement as continuing in force and recover
Page 9 of 17 17
from Vessel Owner damages caused by the Vessel Owners breach, including, without
limitations, the fight to recover the Slip Fees due under this Agreement as the same shall accrue,
and/or terminate Vessel Owners right to use the Slip. The remedies herein above provided are
not exclusive and City may pursue any one or more of such remedies or any other remedies
provided by law.
If Vessel Owner fails to perform any of the terms, conditions and promises as set forth in this
Agreement, City may, at its option, without waiving any other remedies it may have, immediately
terminate this Agreement upon written notice to Vessel Owner.
In the event of Vessel Owners default or termination of this Agreement without removal of the
Vessel, the City may suspend the right of the Vessel Owner to obtain access to the Basin, the
Slip and the Vessel without the necessity of the initiation of any legal proceedings.
(c) No Waiver. The exercise or failure to exercise any remedy provided herein or by law, for any
breach of this Agreement shall not be deemed as a waiver of Citys rights. Failure by City to
exercise any of its rights under this Agreement or Citys acceptance of money payment after
default shall not be considered or construed to waive any right of City or to affect any notice or
legal proceedings given or commenced. Nothing herein shall constitute a waiver of the rights of
the City to a maritime lien under state law or under the Federal Maritime Lien Act.
18. TERMINATION
(a) In addition to the other rights of termination set forth herein, the parties agree that this Agreement
may be terminated at any time by either party upon thirty (30) days written notice.
(b) This Agreement shall, at the sole option of City, automatically and immediately terminate at such
time as Vessel Owner sells, leases, charters or otherwise transfers any or all of Its interest in the
Vessel to any other party, whether or not such transfer is voluntary or involuntary by operation of
law, under legal process or proceedings, by receivership, in bankruptcy or otherwise.
Upon termination of this Agreement, Vessel Owner shall remove the Vessel from the Slip, remove all
other of its personal property, if any, from the Basin, and surrender to the City the Slip and all keys to the
Basin.
19. NOTICES, DEMANDS, REQUESTS AND SERVICES OF PROCESS
(a) Notices. Demands and Requests. All notices, demands and requests which may be, or are
required to be, given pursuant to the provisions of this Agreement may be delivered in person, by
reputable courier, by overnight delivery service, or by depositing in the U.S. Mail, first class
postage prepaid, and addressed as follows:
(i) If to City, at its address designated in this Agreement or to such other person or to such
other address as City may hereafter designate by written notice.
(ii) If to Vessel Owner, to Vessel Owner at the residence, billing address and/or other
address designated in this Agreement or to such other address as Vessel Owner may
hereafter designate by written notice.
(b) Service of Process on Owner. All other legal notices, demands and services of process to be
given to City may be served as provided by law upon the authorized agent of City at the
designated address or upon such other person or at such other address as City may hereafter
designate by written notice.
Page 10 of 17 18
20.
21.
RECORDS
Vessel Owner shall maintain complete and accurate records with respect to such information required by
City that relates to the performance of services under this Agreement and as specked in Exhibit 3,
attached hereto and Incorporated herein by reference.
Vessel Owner shall maintain adequate records on services provided in sufficient detail to permit an
evaluation of services. All such records shall be clearly identified and readily accessible. Vessel Owner
shall provide free access to the representatives of the City or its designees at all proper times to such
books and records, and gives the City the right to examine and audit same, and to make transcripts
therefrom as necessary, and to allow inspection of all work, data, documents, proceedings, and activities
related to this Agreement.
Such records, together with supporting documents, shall be kept separate from other documents and
records and shall be maintained for a period of three (3) years after the conclusion of services.
MISCELLANEOUS PROVISIONS
(a) Waiver. A waiver by either party of any breach, of any term, covenant or condition contained
herein shall not be deemed to be a waiver of any subsequent breach of the same or any other
term, covenant or condition contained herein, whether of the same or a difference character.
(b) Integrated Agreement: This Agreement represents the full and complete understanding of every
kind or nature whatsoever between the City and Vessel Owner, and all preliminary negotiations
and other agreements of any kind or nature are merged herein. No verbal agreement or implied
covenant shall be held to vary the provisions herein.
(c) Conflicts: In the event there are any conflicts or inconsistencies between this Agreement and
any attachments, the terms of this Agreement shall govern.
(d) Modification & Amendment: This Agreement may be modified or amended only by a written
document executed by both Vessel Owner and City and approved as to form by the City
Attorney.
(e) Severability: If any term or portion of this Agreement is held to be invalid, Illegal, or otherwise
unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement
shall continue in full force and effect.
(f) Controlling Law and Venue: The laws of the State of California, and applicable Federal law, shall
govern this Agreement and all matters relating to it and any action brought relating to this
Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange.
(g) Attorneys Fees: The prevailing party in any action brought to enforce the terms and conditions of
this Agreement, or arising out of the performance of this Agreement, shall not be entitled to
recover its attorneys' fees.
(h) Standard of Care: Vessel Owner agrees to perform all services hereunder in a manner
commensurate with the community professional standards and agrees that all services will be
performed by qualified and experienced personnel who are not employed by the City nor have
any contractual relationship with the City.
(1) Independent Parties: City and Vessel Owner intend that the relation between them created by
this Agreement is that of employer- independent contractor and Vessel Owner is not an agent or
employee of City. The manner and means of conducting the work are under the control of
Vessel Owner, except to the extent they are limited by statute, rule or regulation and the
expressed terms of this Agreement. No civil service status or other right of employment shall
Page 11 of 17 29
accrue to Vessel Owner or its employees. Nothing in this Agreement shall be deemed to
constitute approval for Vessel Owner or any of Vessel Owner's employees or agents, to be the
agents or employees of City. Vessel Owner shall have the responsibility for and control over the
means of performing the work, provided that Vessel Owner is in compliance with the terms of this
Agreement. Anything in this Agreement that may appear to give City the right to direct Vessel
Owner as to the details of the performance of the work or to exercise a measure of control over
Vessel Owner shall mean only that Vessel Owner shall follow the desires of City with respect to
the results of the services.
(j) Permits and Licenses: Vessel Owner, at Its sole expense, shall obtain and maintain during the
term of this Agreement, all appropriate permits, licenses, and certificates that may be required in
connection with the performance of services under the terms and conditions of this Agreement.
EXCEPT AS EXPRESSLY PROVIDED IN SECTIONS 10(e) AND 17(a) ABOVE, CITY DOES NOT HEREBY
ASSUME CUSTODY OR POSSESSION OF THE VESSEL OR ANY RESPONSIBILITY WHATSOEVER FOR
THE CARE OR PROTECTION OF SAME, AND VESSEL OWNER HEREBY ASSUMES ALL RISKS
ASSOCIATED WITH THE USE AND OCCUPANCY OF THE SLIP.
VESSEL OWNER AGREES AND UNDERSTANDS THAT THE CITY AND THE BASIN SHALL NOT BE
CONSIDERED AN INSURER OF THE VESSEL OR ANY PROPERTY OF THE OWNER AND OTHERS
CONTAINED ON THE VESSEL OR AT THE BASIN.
VESSEL OWNER REPRESENTS AND WARRANTS THAT ALL STATEMENTS HEREIN ARE FULL, TRUE
AND CORRECT. VESSEL OWNER ACKNOWLEDGES THAT THE CITY HAS FULLY RELIED UPON THESE
STATEMENTS IN EXECUTING THIS AGREEMENT,
THIS AGREEMENT SHALL SUPERSEDE AND REPLACE ANY PRIOR AGREEMENT BETWEEN CITY AND
VESSEL OWNER WITH REGARD TO THE SLIP. ALL SUCH PRIOR AGREEMENTS ARE HEREBY
TERMINATED AND SHALL HAVE NO FURTHER FORCE OR EFFECT.
Page 12 of 17
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year here written.
have received a copy of the Balboa Yacht Basin's Rules and Regulations, which bear the revision date
February 4, 2013. Initial(s)
APPROVED AS TO FORM: CITY OF NEWPORT BEACH,
CITY ATTq Y'S OFFICE A California municipal corporation
Date: z 3 Date:
By: -- C (o By:
Aaron C. Harp David Kirf
City Attorneyt City Manager
ATTEST: VESSEL OWNER:
Dale: SAILING FASCINATION
Date:
By: By:
Leilani I. Brown Name: Tom Tolbert
City Clerk Title: President
(END OF SIGNATURES)
Attachments: Exhibit 1: Curriculum Outline
Exhibit 2: Insurance Requirements
Exhibit 3: Duties to be Performed
Page 13 of 17
22
Exhibit 1
Curriculum Outline
(Sailing Handbook for the Disabled, copyright 1996)
1. Water Safe Test
2. Pre -Boat Training
3. Theory of Sailing
4. Sailing Terms
5. Rig Profile
6. Deck Plan
7.
Adaptive Equipment
8.
Cockpit Layout
9.
Propulsion (Sails)
10.
Points of Sail
11.
Sail Plan
12.
Basic Sall Trimming
13.
Trimming Downwind
14.
Rules of the Road
Page 14 of 17
Exhibit 2
Insurance Requirements
Vessel Owner agrees to obtain and maintain during the term of this Agreement a policy of complete
Marine Insurance including Protection and Indemnity Liability with limits not less than Five Hundred
Thousand Dollars and 00/100 ($500,000.00) per occurrence. Vessel Owner shall also maintain Hull and
General Vessel Protection policy covering at least one hundred percent 100% of the actual cash value of
the Vessel with endorsements for extended perils, damage by fire, electrocution, and /or stray current,
corrosion, vandalism, theft and burglary, in accordance with the following:
The insurance shall be in form and substance satisfactory to the City and shall be placed with
responsible underwriters, which have an assigned policyholder's rating of A (or higher) and Financial
Size Category Class VII (or larger) in accordance with the latest edition of the Best's Key Rating Guide,
and which are currently authorized by the Insurance Commissioner to transact business in the State of
California.
The Vessel Owner shall provide City with copies of the certificates of insurance with original
endorsements evidencing coverage prior to the commencement of this Agreement, which evidence shall
be a precondition to Vessel Owner's use of the Slip. A person authorized by the insurer to bind
coverage on its behalf shall sign certification of all required policies. Vessel Owner shall deliver new
certificates evidencing the required coverage prior to the expiration or termination of any policy, or upon
City's request for such certificates,
All insurance policies shall be endorsed with the following specific language:
(a) The City, its elected or appointed officers, officials, employees, agents and volunteers are to be
covered as additional insureds.
(b) This policy shall be considered primary insurance with respect to the City, its elected or
appointed officers, officials, employees, agents and volunteers with respect to all claims, losses, or
liability arising directly or indirectly from the Agreement. Any insurance maintained by City, including any
self- insured retention City may have, shall be considered excess insurance only and not contributory with
the insurance provided hereunder.
(c) This Insurance shall act for each insured and additional insured as though a separate policy had
been written for each, except with respect to the limits of liability of the insuring company.
(d) The insurer waives all rights of subrogation against City, its elected or appointed officers,
officials, employees, agents and volunteers.
(e) Any failure to comply with reporting provisions of the policies shall not affect coverage provided to
City, Its elected or appointed officers, officials, employees, agents or volunteers.
(f) The insurance provided by this policy shall not be suspended, voided, canceled, or reduced in
coverage or in limits, except after thirty (30) days written notice has been received by City.
(g) City shall have no obligation to pay assessments, premiums or other charges in connection with
any insurance.
Vessel Owner shall give City prompt and timely notice of claim made or suit instituted arising out of or
resulting from this Agreement.
Page 15 of 17 23
Vessel Owner shall also procure and maintain, at its own cost and expense, any additional kinds of
insurance, which in its own judgment may be necessary for Vessel Owner's protection.
Vessel Owner shall also be responsible to ensure that all contractors employed by Vessel Owner comply
with all Basin Rules and Regulations, properly register with Harbor Resources prior to beginning any
work, and provide proof of adequate general liability insurance coverage with a limit of not less than One
Million Dollars and 00/100 ($1,000,000.00) per occurrence, naming the City as an "additional insured" in
a form approved by the City's Risk Manager.
Page 16 of 17 24
Exhibit 3
Duties to be Performed by Sailing Fascination
Maintain non - profit status.
2. Provide boating safety and sailing instruction to disabled individuals.
3. Provide sailing Instruction, provided there Is demand for that instruction, with lessons generally
scheduled for two hours per day on three days per week, and running for four (4) consecutive weeks.
4. Provide City with quarterly report listing name of students and organizations who have participated in the
sailing program.
5. Provide City with curriculum, if and as amended.
6. Provide evidence of Instructor Proficiency Training for each instructor /volunteer employed or utilized by
Sailing Fascination.
7. Require that personal flotation devices (PFDs) approved by the U.S. Coast Guard be worn by all
participants and available to crew while on the docks or underway.
8. Provide annual cash flow statement itemizing revenues and expenditures for fiscal year within ninety (90)
days of last day of Sailing Fascination's fiscal year.
9. Prepare and submit annual budget indicating the expectations and financial needs and revenue sources
for the curenYupcoming fiscal year within ninety (90) days of first day of Sailing Fascination's fiscal year.
Report shall specify in reasonable detail: (i) balance in all funds and accounts maintained by Sailing
Fascination; (ii) all projected revenues and sources of funds for the fiscal year; (Iii) the expenditures
proposed to be made by Sailing Fascination in fulfilling its obligations pursuant to this Agreement; and
(iv) all other proposed expenditures of Sailing Fascination.
Page 17 of 17
City Council
Attachment 2
Contractor Agreement,
executed on May 20, 1997
27
CONTRACTOR AGREEMENT
THIS AGREEMENT, entered into this 20th day of May, 1997, by and between the
City of Newport Beach, a Municipal Corporation (hereinafter referred to as "City "), and
Sailing Fascination, a California Public Benefit Corporation, whose president is Jack W.
Hester, mailing address, 4010 Park Newport, #224, Newport Beach, California, 92660
(hereinafter referred to as "Sailing Fascination "), is made with reference to the following:
RECITALS
A. The City is a Municipal Corporation duly organized and validly existing under the
laws of the State of California with the power to carry on its business as it is now being
conducted under the statutes of the State of California and the Charter of the City.
B. The City and Sailing Fascination desire to enter into an Agreement for provision of
sailing instruction to disabled members of the public as set forth in Exhibit "A" upon the
terms and conditions herein.
C. The Sailing Class Schedule and Lesson Plan shall be as provided to the City by
Sailing Fascination and set forth herein as Exhibit "B."
NOW, THEREFORE, it is mutually agreed by and between the City and Sailing
Fascination as follows:
1. TERM
This Agreement shall be effective as of May 20 , 1997, and shall continue for
three years unless terminated earlier as set forth herein.
Qie
25
2. SERVICES TO BE PERFORMED
Sailing Fascination shall perform each and every service set forth in Exhibit "A" and
Exhibit "B" which are attached hereto and incorporated herein by this reference.
3. COMPENSATION TO SAILING FASCINATION
Sailing Fascination shall be compensated for services performed pursuant to this
Agreement by free slip rent for one slip at the City Marina, Balboa Yacht Basin, Slip B -1.
Slip selection shall be at the City's option as long as that slip affords the same degree of
accessibility.
4. STANDARD OF CARE
Sailing Fascination agrees to perform all services hereunder in a manner
commensurate with the community professional standards and agrees that all services
will be performed by qualified and experienced personnel who are not employed by the
City nor have any contractual relationship with the City.
5. INDEPENDENT PARTIES
City and Sailing Fascination intend that the relation between them created by this
agreement is that of employer - independent contractor. The manner and means of
conducting the work are under the control of Sailing Fascination, except to the extent they
are limited by statute, rule, or regulation and the express terms of this Agreement. No
civil service statutes or other right of employment will be acquired by virtue of Sailing
Fascinations services. None of the benefits provided by City to its employees, including,
but not limited to, unemployment insurance, worker's compensation plans, vacation and
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30
sick leave, are available from City to Sailing Fascination, its employees or agents.
6. HOLD HARMLESS
Sailing Fascination shall indemnify and hold harmless City, its City Council, boards
and commissions, officers, agents, servants, and employees from and against any and all
loss, damages, Liability, claims, suits, costs, and expenses, whatsoever, including
reasonable attorney's fees, regardless of the merit or outcome of any. such claim or suit
arising from or in any manner connected to any willful or negligent act or omission by
Sailing Fascination in connection with this Agreement.
Sailing Fascination shall indemnify and hold harmless the City, its City Council,
boards and commissions, officers, agents, servants, and employees from and against any
and all claims and losses whatsoever, including reasonable attorneys' fees, accruing or
resulting to any and all persons, firms or corporations furnishing or supplying work,
services, materials, equipment or supplies in connection with the services, work or
activities conducted or performed pursuant to this Agreement.
7. INSURANCE
On or before the commencement of the term of this Agreement, Sailing Fascination
shall furnish City with certification showing the type, amount, class of operations covered,
effective dates and dates of expiration of insurance coverage in compliance with
Paragraphs 7A, B, and C. Such certificates, which do not limit Sailing Fascination
indemnification, shall also contain substantially the following statement:
"Should any of the above insurance covered by this certificate be canceled or
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31
coverage reduced before the expiration date thereof, the insurer afforded
coverage shall provide thirty (30) days advance notice to the City of
Newport Beach."
It is agreed that Sailing Fascination shall maintain in force at all times during the
performance of this Agreement all appropriate coverage of insurance required by this
Agreement with an insurance company that is acceptable to City and, if required, licensed
to do insurance business in the State of California.
A. COVERAGE
Sailing Fascination shall maintain the following insurance coverage:
(1) Liability: $1,000;000 combined single limit for bodily injury and
property damage.
B. SUBROGATION WAIVER
Sailing Fascination agrees that in the event of loss due to any of the perils for which
it has agreed to provide comprehensive general liability insurance, that Sailing Fascination
shall look solely to its insurance for recovery. Sailing Fascination hereby grants to City, on
behalf of any insurer providing comprehensive general liability insurance to either Sailing
Fascination or City with respect to the services of Sailing Fascination herein, a waiver of
any right of subrogation which any such insurer of said Sailing Fascination may acquire
against City by virtue of the payment of any loss under such insurance.
C. ADDITIONAL INSURED
City, its City Council, boards and corrurissions, officers, and employees shall be
32
named as an additional insured under all insurance coverages, except any professional
liability insurance, required by this Agreement. The naming of an additional insured shall
not affect any recovery to which such additional insured would be entitled under this
policy if not named as such additional insured. An additional insured named herein shall
not be held liable for any premium, deductible portion of any loss or expense of any
nature on this policy or any extension thereof. Any other insurance held by an additional
insured shall not be required to contribute anything toward any loss or expense covered
by the insurance provided by this policy.
8. PROHIBITION AGAINST TRANSFERS
Sailing Fascination shall not assign, sublease, hypothecate, or transfer this
Agreement or any interest therein directly or indirectly, by operation of law or otherwise.
Any attempt to do so without consent shall be null and void, and any assignee, subleasee,
hypothecate, or transferee shall acquire no right or interest by reason of an attempted
assignment, hypothecation or transfer.
9. PERMITS AND LICENSES
Sailing Fascination, at its sole expense, shall obtain and maintain during the term of
this Agreement, all appropriate permits, licenses, and certificates that may be required in
connection with the performance of service hereunder.
10. RECORDS
Sailing Fascination shall maintain complete and accurate records with respect to
such information required by City that relates to the performance of services under this
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33
Agreement.
Sailing Fascination shall maintain adequate records on services provided in
sufficient detail to permit an evaluation of services. All such records shall be clearly
identified and readily accessible. Sailing Fascination shall provide free access to the
representatives of the City or its designees at all proper times to such books and records,
and gives the City the right to examine and audit same, and to make transcripts therefrom
as necessary, and to allow inspection of all work, data, documents, proceedings, and
activities related to this Agreement. Such records, together with supporting documents,
shall be kept separate from other documents and records and shall be maintained for a
period of three (3) years after receipt of final payment.
11. NOTICES
All notices, demands and requests for approvals to be given under this Agreement
shall be given in writing and conclusively shall be deemed served when delivered
personally or on the second business day after the deposit thereof in the United States
Mail, postage paid, registered or certified, addressed as hereinafter provided.
All notices, demands, requests or approvals from Sailing Fascination to City shall
be addressed to City at:
City of Newport Beach
3300 Newport Boulevard
P.O. Box 1768
Newport Beach, CA 92659 -1768
All notices, demands, requests or approvals from City to Sailing Fascination shall
34
be addressed to Sailing Fascination at:
Sailing Fascination
4010 Park Newport #224
Newport Beach, CA 92660
12. TERMINATION
In the event Sailing Fascination hereto fails or refuses to perform any of the
provisions hereof at the time and in the manner required hereunder, Sailing Fascination
shall be deemed in default in the performance of the agreement. If such default is not
cured within a period of thirty (30) days after receipt of Sailing Fascination from City of
written notice of default, specifying the nature of such default and the steps necessary to
cure such default, City may terminate the Agreement forthwith by giving to the Sailing
Fascination written notice thereof.
The City shall have the option, at its sole discretion and without cause, of
terminating this Agreement by giving thirty (30) days written notice to Sailing Fascination
as provided herein. Upon termination of this Agreement, Sailing Fascination will
immediately remove their vessel from the Balboa Yacht Basin.
13. COST OF LITIGATION
If any legal action is necessary to enforce any provision hereof or for damages by
reason of an alleged breach of any provisions of this Agreement, the prevailing party shall
be entitled to receive from the losing party all costs and expenses in such amount as the
court may adjudge to be reasonable attorneys' fees.
-7-
35
14. COMPLIANCES
Sailing Fascination shall comply with all laws, state or federal, and all ordinances,
rules, and regulations enacted or issued by the City.
15. WAIVER
A waiver by the City of any breach of any term, covenant, or condition contained
herein shall not be deemed to be a waiver of any subsequent breach of the same or any
other term, covenant or condition contained herein whether of the same or a different
character.
16. ADVERTISEMENT
Sailing Fascination shall not post, exhibit, display, on their vessel or allow to be
posted, exhibited, or displayed on their vessel, any signs, advertising, show bills,
lithographs, posters, or cards of any kind pertaining to- the services performed under this
Agreement unless prior written approval having been secured from the City to do
otherwise.
17. INTEGRATED CONTRACT
This Agreement represents the full and complete understanding of every kind or
nature whatsoever between the parties hereto and all preliminary negotiations and
agreements of whatsoever kind or nature are merged herein. No verbal agreement or
implied covenant shall be held to vary the provisions hereon. Any modification of this
Agreement will be effective only by written execution signed by both City and Sailing
Fascination.
36,
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
on the day and year first written above.
APPROVED AS TO FORM:
CITY ATTORNEY
ATTEST:
CITY CLERK
CITY OF NEWPORT BEACH
A Municipal Corporation
By:
SAILING FASCINATION
� 1
i _
.3j
EXHIBIT "A"
Duties to be Performed b Sailing Fascination
Provide sailing instruction to disabled individuals.
2. Provide sailing instruction generally in accordance with the schedule attached as
Exhibit "B" provided there is demand for that instruction.
3. Begin sailing instruction by 5/20/97 (date).
4. Provide City with copies of each disabled student's application as submitted to
Department of Boating and Waterways.
5. Prepare quarterly reports listing the number of students who have participated in
the sailing instruction.
6. Provide the City copies of the class schedule.
7. Provide evidence of Instructor Proficiency Training for each instructor employed
by the Sailing Fascination.
8. Require that personal floating devices (PFDs) approved by U.S. Coast Guard be
available to all participants and crew while on the docks or underway.
9. Berthing of Sailing Fascination's vessel at the Balboa Yacht Basin shall be upon the
terms and conditions as set forth in the "Vessel Mooring Agreement" executed on
August 1, 1996, except as provided herein.
-10-
Mf
Exhibit B
(1 of 2)
SAILING FASCINATION
Lesson Plan
Contents
PART ONE
LESSON ONE: Theory of Sailing 1
LESSON TWO: Sailing Terms 2
LESSON THREE: Adaptive Equipment 3
LESSON FOUR: Propulsion & Points of Sail 4
LESSON FIVE: Basic Sail Trimming 5
LESSON SIX: Rules of the Road 6
PART TWO
LESSON SEVEN: Student as Crew
7
LESSON EIGHT: Getting Underway
8
LESSON NINE: Stopping and Starting
9
LESSON TEN: Tacking and Close Reaching
10
LESSON ELEVEN: Broad Reaching & Running
11
LESSON TWELVE: Sailing to a destination
12
LESSON THIRTEEN: General Review
13
LESSON FOURTEEN: Sailing with disabled crew
14
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(2 OF 2)
SAILING FASCINATION Mass Schedule
SUNDAY
MONDAY
TUESDAY
WEDNESDAY
THURSDAY
FRIDAY
SATURDAY
Course A
Course A
Course A
Staff Meeting
Course B
Class 97 -01
Class 97 -01
Class 97-01
Repairs &Main.
Class 97 -02
No Classes
No Classes
Lesson I & 2
Lesson 3 & 4
Lesson 5 & 6
Reports
Lesson 1 - 6
10 AM -Noon
l0 AM -Noon
10 AM -Noon
Review Students
9 AM-Noon
1 PM -3 PM
1 PM -3 PM
1 PM -3 PM
Interview Students
1 PM-4 PM
Course A
Course A
Course A
Staff Meeting
Course B
Class 97 -01
Class 97 -01
Class 97 -01
Repairs & Main.
Class 97 -02
No Classes
No Classes
lesson 7 & a
Lesson 9 & 10
Lesson 11 &12
Reports
Lesson 7 - 8
10 AM -Noon
10 AM -Noon
10 AM -Noon
Review Smdents
9 AM -Noon
I PM -3 PM, x
1 PM-3 PM
1 PM-3 PM
Interview Students
1 PM-4 PM
Course A
Course A
Course A
Staff Meeting
Course B
Class 97 -01
Class 97 -01
Class 97 -01
Repairs & Main.
Class 97 -02
No Classes
No Classes
Lesson 13 & 14.4
Free Sailing
Graduation Sa11
Reports
Lesson 9 -10
10 AM -Noon
10 AM -Noon
10 AM -Noon
Review Students
9 AM -Noon
i PM -3 PM
I PM -3 PM
1 PM -3 PM
Interview Students
1 PM-4 PM
-
Course B
Class 97-02
Lesson 11 -12
9 AM -Noon
1 PM-4 PM
C
Repeat Three Week'Schedule above for
Weekday Classes
Course B
(
Weekday classes are for taemFlov d, disabled students.)
Class 97 -01
Weekend
Class Schedule
Repeats every
Six Weeks
Lesson 13 -14
( Saturday classed are for emnloved, disabled students.)
9 AM -Noon
1 PM -4 PM
Course B
Class 97 -02
f
Graduation Sail
9 AM -Noon
1 PM-4 PM
O 0
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City Council
Attachment 3
Vessel Mooring Agreement,
executed on January 22, 2002
41
42
BALBOA YACHT BASIN
829 Harbor Island Drive
Newport Beach, CA 92660
VESSEL MOORING AGREEMENT
/'
THIS VESSEL MOORING AGREEMENT is made by and between the CITY OF NEWPORT
BEACH (hereinafter called "City ") and Sailing Fascinations, a California Public Benefit Corporation,
(hereinafter called "Vessel Owner'); if more than one, each shall be jointly liable and all are
collectively referred to as "Vessel Owner' herein.
City hereby grants Vessel Owner permission to moor his vessel at THE BALBOA YACHT BASIN
(hereinafter called "Marina ") in Mooring Space No. B1 and Vessel Owner hereby
agrees to take the mooring defined herein for the term specified, subject to all of the terms and
provisions set forth below:
1. OWNER:
Name: Sailing Fascinations. a California Public Benefit Corporation
President: Jack W. Hester
Business Address: 4010 Park Newport #224, Newport Beach, CA
Telephone: Home: Business: 800- 735 -2922 Emergency: 714 - 760 -2646
(_- Legal owner of Vessel same as above (such as corporation, partnership, lienholder,
other name on title).
2. VESSEL DESCRIPTION: Vessel Name Fascinations 2
CF /Doc.No. CF9463SP Type Sail Builder J -24
Total Length 24 ft Beam 7 ft Draft 5ft
(including bowsprit, pulpit, swim step, etc.)
Insurance Carrier /Agent: Stark Weather and Shipley
Insurance Policy No. 390FA503600025
Vessel Owner agrees to give City written notice of any change in the Insurance Carrier,
Insurance Agent or Insurance Policy Number, within five 5) days of the occurrence of any such
change.
3. CITY Authorized manager of the premises:
Harbor Resources Division, City of Newport Beach
3300 Newport Blvd., PO Box 1768, Newport Beach, CA 92658 -8915.
4. PAYMENT OF FEES: In lieu of slip fees for the term of this agreement, Sailing Fascinations
shall provide boating safety and sailing instructions to a minimum of 7 disabled individuals per
I quarter. This instruction will be provided free of charge and shall conform to the curriculum
RE
outline and class scheduled marked in Exhibit "A' and Exhibit "B" which are attached hereto
and incorporated herein by this reference.
5. TERM: This Agreement shall be effective as of January 22, 2002 and shall continue for three
years unless terminated earlier as set forth herein.
6. STANDARD OF CARE: Sailing Fascination agrees to perform all services hereunder in a
manner commensurate with the community professional standards and agrees that all services
will be performed by qualified and experienced personnel who are not employed by the City nor
have any contractual relationship with the City.
INDEPENDENT PARTIES: City and Sailing Fascination intend that the relation between them
created by this agreement is that of employer- independent contractor. The manner and means
of conducting the work are under the control of Sailing Fascination, except to the extent they
are limited by statute, rule, or regulation and the express terms of this Agreement. No civil
service statutes or other right of employment will be acquired by virtue of Sailing Fascinations
services. None of the benefits provided by City to its employees, including, but not limited to,
unemployment insurance, worker's compensation plans, vacation and sick leave, are available
from City to Sailing Fascination, its employees or agents.
8. CONDITIONS OF USE: Vessel Owner promises that he will perform and abide by each and
every condition of use contained in this Agreement including but not limited to;
(a) Liveaboards. Vessel Owner agrees that neither he nor any other person will live aboard the
boat while it is moored at the Balboa Yacht Basin. Occupancy of the vessel, while moored
in the basin, by anyone for periods in excess of forty -eight (48) hours per week shall
( _.. constitute living aboard and shall be grounds for termination of the Agreement.
(b) Discharge of Waste. No waste matter from sinks, toilets, marine heads, holding tanks,
bilges, or any other receptacles shall be discharged into the water of the Marina. If the
Vessel is equipped with a toilet, a marine head, or any other permanent or temporary
receptacle for human body wastes, then the Vessel must be equipped with a holding tank
designed to retain all human body wastes deposited in the receptacle until such time as the
wastes can be discharged into a sanitary sewer system or discharged otherwise in
accordance with law. Vessel Owner agrees to permit City to inspect such holding tanks
from time to time upon demand by City.
(c) Signs. No signs for the purpose of advertising or display shall be placed on the Vessel
without the prior written approval of City.
(d) Overhangs. No part of the Vessel shall at any time extend over any portion of any dock in
the Marina, and Vessel Owner agrees to indemnify, defend and hold City harmless for any
injury or damage caused or alleged to have been caused, by any failure to comply with this
condition.
(e) Securing Vessel. At all times during which the Vessel is berthed at the Mooring, Vessel
Owner shall cause it to be safely and properly secured to its mooring in a manner
acceptable to City. If City deems it necessary to resecure the Vessel for any reason,
Vessel Owner agrees to pay City a reasonable service charge for doing so plus the cost of
all materials used therefor. Vessel owners agree to release City, and hold City harmless,
44
from any liability for damage to the Vessel or its contents by reason of City's efforts to
resecure said Vessel or its decision not to resecure Vessel.
(f) Condition of Mooring. Vessel Owner hereby acknowledges that Vessel Owner has
inspected the Mooring and those portions of the Marina associated with the Mooring,
including, without limitation, the floats, walks, gangways, and ramps; knows the condition of
same, hereby accepts the Mooring in such condition and agrees that no statement or
representation as to condition has been made by the City.
(g) Vessel Owners Care of Mooring and Docks. Vessel Owners shall not store any small
boats, dinghies, skiffs, bait tanks, boat gear, power lines, water hoses or other personal
property whatsoever at the Mooring (other than aboard the Vessel) or on the docks or
gangways adjacent to the Mooring, but shall keep the Mooring and said docks and
gangways in a neat, clean and orderly condition, free and clear of all such items other than
power lines and water hoses in use. No wheels, fenders, rubbing strips or other cushioning
devices may be attached to a dock for the purpose of protecting hulls, with out the prior
written approval of City. No flammable or combustible materials shall be stored or left on
the docks of the Marina. Vessel Owner agrees to make a written report to City of any
conditions existing on or about the Marina which Vessel Owner believes to be a dangerous
condition or which might develop into a dangerous condition.
(h) Commercial Enterprise. Vessel Owner will not conduct or allow the Vessel to be used for
commercial enterprise during the existence of this Agreement without the prior written
approval of City.
(i) Guests. Vessel Owner agrees that all guests and hired personnel will conform their
activities to the requirements of this Agreement, and Vessel Owner agrees to be liable for,
and to indemnify and hold City harmless from, any damages or injury caused by any such
guest or hired personnel while in the Marina. City reserves the right to regulate entry into
the Marina by yacht brokers and yacht service personnel, and City may require written
authorization from Vessel Owner.
G) Use of Space by City. Vessel Owner shall notify City when Vessel Owner expects the
vessel to be away from the space for periods in excess of three (3) days. City shall have
the right to utilize the space for rental purposes or otherwise without credit or compensation
to Vessel Owner during such periods; provided, however, if Vessel Owner returns prior the
scheduled return date, City shall supply a substitute mooring space to Vessel Owner.
(k) Change of Mooring. The City reserves the right to move or to require a Vessel Owner to
move the Vessel from the Mooring to another Mooring within the Marina at any time for any
reason whatsoever. Vessel Owner hereby grants to the City permission to board the
Vessel for said purpose. Vessel Owner agrees to release the City and its officers, agents
or employees from any liability for loss or damage resulting or alleged to result from any
such movement of the Vessel or from any failure to move the Vessel.
(1) Insurance. On or before the commencement of the term of this Agreement, Sailing
Fascination shall furnish City with certification showing the type, amount, class of
operations covered, effective dates and dates of expiration of insurance coverage in
compliance with Paragraphs (1) (1), (1) (2) and (1) (3). Such certificates, which do not limit
Sailing Fascination indemnification, shall also contain substantially the following
( statement:
45
"Should any of the above insurance covered by this certificate be canceled or coverage
reduced before the expiration date thereof, the insurer afforded coverage shall provide
thirty (30) days advance notice to the City of Newport Beach.
It is agreed that Sailing Fascination shall maintain in force at all times during the
performance of this Agreement all appropriate coverage of insurance required by this
Agreement with an insurance company that is acceptable to City and, if required,
licensed to do insurance business in the State of California.
(1) Coverage: Sailing Fascination shall maintain the following insurance coverage:
(a) Liability: $1,000,000 combined single limit for bodily injury and property
damage.
(2) Subrogation Waiver: Sailing Fascination agrees that in the event of loss due to
any of the perils for which it has agreed to provide comprehensive general
liability insurance, that Sailing Fascination shall look solely to its insurance for
recovery. Sailing Fascination hereby grants to City, on behalf of any insurer
providing comprehensive general liability insurance to either Sailing Fascination
or City with respect to the services of Sailing Fascination herein, a waiver of any
right of subrogation which any such insurer of said Sailing Fascination may
acquire against City by virtue of the payment of any loss under such insurance.
(3) Additional Insured: City, its City Council, boards and commissions, officers, and
employees shall be named as an additional insured under all insurance
-- coverages, except any professional liability insurance, required by this
Agreement. The naming of an additional insured shall not affect any recovery to
which such additional insured would be entitled under this policy if not named as
such additional insured. An additional insured named herein shall not be held
liable for any premium, deductible portion of any loss or expense of any nature
on this policy or any extension thereof. Any other insurance held by an additional
insured shall not be required to contribute anything toward any loss or expense
covered by the insurance provided by this policy.
(m) Assignment and Subletting. Vessel Owner shall have no right or power to assign the
Agreement or sublet the Mooring or any part thereof to any other person or party
whatsoever. No attempted transfer or assignment, whether voluntary or involuntary, by
operation of law, under legal process or proceedings, by receivership, in bankruptcy, or
otherwise, and no attempted subletting, shall be valid or effective, but shall automatically
terminate this Agreement. If Vessel Owner notifies the City in writing of its intention to have
the Mooring vacant for stated period, the City may, at its option, allow use of the Mooring by
another vessel for such stated period, and may, in its discretion, credit Vessel Owner's
account for net income received from such use.
(n) Regulations. Vessel Owner agrees to use the Mooring and the Marina in accordance with
the City's Rules and Regulations, a current copy, which Vessel Owner has received, and
which, by this reference, is made a part hereof. The City reserves the right to modify its
Rules and Regulations from time to time. Vessel owner further agrees not to violate any
( law, ordinance, rule or regulation of the City, or other governmental agency.
40
(o) Electricity. Electricity will be supplied to each slip and will be billed to the individual slip
tenant on a monthly basis.
9. DAMAGE AND DESTRUCTION
(a) Vessel Owner's Obligation. Vessel Owner hereby agrees to hold City, its directors, officers,
employees and agents harmless from, and to pay on demand all reasonable costs of repair
or restoration resulting from, any damage or destruction to the Mooring, Marina, or any
vessels in the Marina resulting from any act or omission of Vessel Owner and or any
employee or representative of Vessel Owner.
(b) Effect of Damage or Destruction. In the event of damage to or destruction of the Marina or
the Mooring by fire, flood, earthquake, or any other cause or causes, City shall have the
option to:
(1) Treat this Agreement as continuing and repair or restore the Marina or Mooring to their
condition before such damage or destruction occurred within thirty (30) days of the
occurrence of the same or, if insured, within thirty (30) days after City received
permission from the insurer to proceed with repair or restoration; or
(2)Terminate this Agreement and all further obligations hereunder of either party by
written notice to Vessel Owner.
After the occurrence of such damage or destruction, the Vessel Owner's obligation to
pay fees hereunder shall be abated in an amount which City, in its sole discretion,
shall determine to be proportionate to the area of the Mooring rendered unfit for use
by Vessel Owner during the period of repair or restoration.
10. WASTE, QUIET ENJOYMENT Vessel Owner shall not commit or permit any waste upon the
Mooring or any nuisance or other act or thing which may disturb the quiet enjoyment of any
other vessel in or about the Marina. Violation of this provision shall be grounds for immediate
termination of this Agreement at the option of City. Vessel Owner shall not use in any wasteful,
unreasonable or hazardous manner, any of the utilities furnished by the cities.
11. LIMITATIONS ON CITY'S LIABILITY
(a) Injury. Loss or Damage. Unless caused by the fraudulent, willful or illegal act of City,
Vessel Owner agrees that City, its City Council officers, employees and agents shall not be
liable for any injury, including death, to any person caused by any use of the Mooring or the
Marina or arising from any accident, fire or casualty thereon or from any other cause
whatsoever; nor shall City, its directors, officers, employees and agents be liable for any
loss of, or any damage to any article belonging the Vessel Owner or located in the Mooring
or other facilities under the control of City. Vessel Owner hereby agrees to defend,
indemnify and hold City harmless from all liability for any such injury, loss or damage.
(b) Other Limitations. Vessel Owner also agrees that City shall not be liable for, and this
Agreement shall not be terminated by, any interruption or interference with services or
accommodations due Vessel Owner caused by strike, riot, orders or acts of public
authorities, acts of other vessel owners, accident, the making of necessary repairs to the
C Marina, or any other cause beyond City's control.
47
12. REMEDIES FOR DEFAULT
(a) Possessory Lien: By execution of this Agreement, Vessel Owner acknowledges that
pursuant to Harbors and Navigation Code Section 501 and by the terms of this Agreement,
City shall have a lien on Vessel Owners vessel for money which may become due under
this Agreement. Pursuant to said statutory lien, City has the right to take possession and
control of and remove and store the Vessel for the purpose of perfecting and executing
upon City's statutory lien rights in the Vessel.
(b) Other Remedies: If Vessel Owner fails to pay mooring fees, cost of repair or restoration or
other charges to be borne by Vessel Owner or, in the event of any other breach of this
Agreement by Vessel Owner, City may, at its option, regard this Agreement as continuing
in force and recover from Vessel Owner damages caused by the Vessel Owner's breach,
including, without limitations, the right to recover the mooring fees due under this
Agreement as the same shall accrue, or terminate Vessel Owners right to use the
Mooring. The remedies herein above provided are not exclusive and City may pursue any
other remedies provided by law.
(c) No Waiver: The exercise or failure to exercise any remedy provided herein or by law, for
any breach of this Agreement shall not be deemed as a waiver of City's right. Failure by
City to exercise any of its rights under this Agreement or City's acceptance of money
payment after default shall not be considered or construed to waive any right of City.
(d) Attorney's Fees: In the event either City or Vessel Owner shall bring any action in
connection herewith, the party prevailing therein shall be entitled to recover as part of such
action reasonable attorney's fees and court costs.
13. TERMINATION: Except as otherwise provided in subparagraph 7 Q) above:
(a) This Agreement may be terminated at any time by either party upon not less than thirty (30)
days written notice.
(b) This Agreement shall, at the sole option of City, automatically and immediately terminate at
such time as Vessel Owner sells, leases, charters or otherwise transfers any or all of his
interest in the Vessel to any other party, whether or not such transfer is voluntary or
involuntary by operation of law, under legal process or proceedings, by receivership, in
bankruptcy or otherwise.
(c) If Vessel Owner fails to perform any of the terms, conditions and promises as set forth in
this Agreement, City may, at its option, without waiving any other remedies it may have,
immediately terminate this Agreement upon written notice to Vessel Owner.
(d) Upon termination of this Agreement, Vessel Owner shall remove the Vessel from the
Mooring, shall remove all other of its personal property, if any, from the Marina, and shall
surrender to the City the Mooring and all keys to the Marina
14. NOTICES, DEMANDS, REQUESTS AND SERVICES OF PROCESS
(a) Notices, Demands and Requests. All notices, demands and requests which may be, or are
required to be, given pursuant to the provisions of this Agreement may be delivered in
go
person or by depositing same in the U.S. Mail, first class postage prepaid, and addressed
as follows:
(1) If to City, to the City of Newport Beach, c/o Harbor Resources Division.
(2) If to Vessel Owner, to Vessel Owner at the residence and /or business address as
Vessel Owner may hereafter designate by written notice.
(b) Service of Process on Owner. All other legal notices, demands and services of process to
be given to City may be served as provided by law upon the Authorized Agent of City at his
designated address or upon such other person or at such other address as City may
hereafter designate by written notice.
15. RECORDS: Sailing Fascination shall maintain complete and accurate records with respect to
such information required by City that relates to the performance of services under this
Agreement.
Sailing Fascination shall maintain adequate records on services provided in sufficient detail to
permit an evaluation of services. All such records shall be clearly identified and readily
accessible. Sailing Fascination shall provide free access to the representatives of the City or
its designees at all proper times to such books and records, and gives the City the right to
examine and audit same, and to make transcripts therefrom as necessary, and to allow
inspection of all work, data, documents, proceedings, and activities related to this Agreement.
Such records, together with supporting documents, shall be kept separate from other
documents and records and shall be maintained for a period of three (3) years after receipt of
final payment.
EXCEPT AS EXPRESSLY PROVIDED IN PARAGRAPHS 8(e) AND 12(a) ABOVE, CITY DOES
NOT HEREBY ASSUME CUSTODY OR POSSESSION OF THE VESSEL OR ANY
RESPONSIBILITY WHATSOEVER FOR THE CARE OR PROTECTION OF SAME, AND
VESSEL OWNER HEREBY ASSUMES ALL RISKS ASSOCIATED WITH THE USE AND
OCCUPANCY OF THE MOORING.
VESSEL OWNER REPRESENTS AND WARRANTS THAT ALL STATEMENTS HEREIN ARE
FULL, TRUE AND CORRECT. VESSEL OWNER ACKNOWLEDGES THAT THE CITY HAS
FULLY RELIED UPON THESE STATEMENTS IN EXECUTING THIS AGREEMENT.
J
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year
here written.
CITY OF yNEWPORT BEACH
by: -v Prc 24:141
VESSEL OWNER(S): GT�f L, 11Y6 -FAScl%-1:5 l,riG,
Drivers License Number
-Social Security Number
Date of this Agreement:
t
50
City Council
Attachment 4
City Council Policy F -7
Income Property
.51
52
F -7
The City owns and manages an extensive and valuable assortment of property
including streets, parks, beaches, public buildings and service facilities. The City also
owns and operates a yacht basin, a mobile home park, a luxury residential development
and various other income properties. Most of the income property is tidelands, filled
tidelands or waterfront. Unencumbered fee value of income property is estimated at
upwards of one hundred million dollars, and 'income typically contributes ten percent
of all City revenues.
As owner of property, the City is the steward of a public trust, and state law requires
the City to maximize its returns or be subject to a charge of making a gift of public
funds. Nevertheless, the City Council recognizes the importance of this property not
only as a revenue generator, but also as a means to provide otherwise unfeasible uses
and facilities to benefit the community.
In managing its property, the City will continually evaluate the potential of all City
owned property to produce revenue. This may include leasing mlused land, renting
vacant space, and establishing concessions in recreation areas or other similar
techniques. The City Couricil will evaluate the appropriateness of establishing new
income properties using sound business principals and after receiving input from
neighbors and users.
The policy of the City Council is that income property be managed in accordance with
the following:
A. Whenever a lease, management contract, concession, sale or similar action
regarding income property is considered by the City, an analysis shall be
conducted to determine the maximum or open market value of the property.
This analysis shall be conducted using appraisals or other techniques to
determine the highest and best use of the property and the highest value of the
property.
B. All negotiations regarding the lease, management contract, concession, sale or
similar action regarding income property shall include review of an appraisal or
analysis of the use being considered for the property conducted by a reputable
and independent professional appraiser, real estate consultant or business
consultant.
1
53
F -7
C. The City shall seek, whenever practical and financially advantageous, to operate
or manage all property and facilities directly with City staff or contractors.
D. In all negotiations regarding the lease, management contract, concession, sale or
similar action regarding a non - residential income property, the City shall seek
revenue equivalent to the open market value of the highest and best use; and;
whenever possible the City shall conduct an open bid or proposal process to
insure the highest financial return.
E. Whenever less than the open market or appraised value is received or when an
open bid process is not conducted, the City shall make specific findings setting
forth the reasons thereof.
Such findings may include but need not be limited to the following:
1. The City is prevented by tideland grants, Coastal Commission guidelines
or other restrictions from selling the property or converting it to another
use.
2. Redevelopment of the property would require excessive time, resources
and costs which would outweigh other financial benefits.
3. Converting the property to another use or changing the manager,
concessionaire or lessee of the property would result in excessive vacancy,
relocation or severance costs, which would outweigh other financial
benefits.
4. Converting residential property to another use or opening residential
leases to competitive bid would create recompensable liabilities and other
inequities for long -term residents.
5. The property provides an essential or unique service to the community
that might not otherwise be provided were full market value of the
property be required.
6. The property serves to promote other goals of the City such as affordable
housing, preservation of open space or marine related services.
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F. Generally, lengths of leases, management contracts; concessions or similar
agreements will be limited to the minimum necessary to meet market standards
and will contain appropriate reappraisal and inflation protection provisions.
Also, all agreements shall contain provisions to assure complete audits
periodically through their terms.
G. All negotiations regarding the lease, management contract, concession, sale or
similar action regarding income property shall be conducted by the City
Manager or his designee under the direction of any appropriate City committees
prior to consideration by the City Council.
H. To provide an accurate accounting of actual net revenues generated by the City's
income property, all costs and charges directly attributable to the management of
a specific income property shall be debited against the gross revenues collected
on that property in the fiscal year the costs are incurred. Costs and charges
include property repairs and maintenance, property appraisals, and consultant
fees, as authorized by the City Council, City Manager or by this Income Property
Policy.
I. The City Manager is authorized to sign an amendment to the lease, management
contract, concession or similar agreement in order to correct any errors or
discrepancies in the agreement, or to clarify provisions in the agreement. The
City Manager is also authorized to sign an amendment if circumstances arise that
were not reasonably foreseeable by the parties, which need to be addressed in an
amendment. Notwithstanding the foregoing, the City Council shall authorize
any amendment which increases or decreases the annual revenues in the
agreement by $10,000 or more.
Adopted - July 27,1992
Amended - January 24, 1994
Amended - February 27,1995
Amended - February 24, 1997
Amended - May 26,1998
Amended - August 11, 2009
Formerly F -24
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