HomeMy WebLinkAboutC-3146 - Berthing at Balboa Yacht BasinOF N EWPCRT BEACH I
MAY 2 71997 May 27,1997
• Council Agenda
APPROVED Item No. 13
TO: Mayor and Members of the City Council
FROM: Tim Riley, Fire and Marine Chief
SUBJECT: Agreement between the City of Newport Beach and Sailing Fascination
regarding berthing at the Balboa Yacht Basin
RECOMMENDATION:
If desired, authorize the Mayor and City Council to execute the attached contract
between the City of Newport Beach and Sailing Fascination.
BACKGROUND:
At its meeting of January 13,1997, the City Council heard an appeal by Sailing
Fascination, a non - profit agency, seeking a waiver of payment of its slip fees at the
City's Balboa Yacht Basin. Sailing Fascination had come into the Balboa Yacht Basin in
August 1996 and had paid no rent since October 1996. The rent charged was $362.00
• per month totaling $4,344.00 per year.
Sailing Fascination was asking for a waiver of slip fees because they were offering
instruction to disabled sailors at no charge and they wanted the City's support
regarding this program, through the donation of a slip at the Balboa Yacht Basin.
Staff recommended denial of Sailing Fascination's application because the City is
trustee of the State's tidelands which includes the Balboa Yacht Basin and failure to
maximize revenues on States tidelands could be considered a violation of the trust. The
City Attorney stated that as trustee of the tidelands, it was a requirement that the City
charge fees that are equal to the fair market value and the City is prohibited from giving
away public funds. However, he indicated that if the City were to waive the fees, the
State probably would not take any action. He noted that as far as public funds, the fees
could be waived if it was determined that the waiver of fees provided a public benefit.
Council recommended that the matter be continued to allow representatives from
Sailing Fascination to meet with City staff and then come back to the City Council with
alternatives.
Staff has met with Sailing Fascination and the attached contract is a result of those
meetings. The contract allows Sailing Fascination to remain at the Balboa Yacht Basin
rent free and in lieu of rent, Sailing Fascination will provide sailing instruction to
• disabled sailors free of charge as outlined in the attached contract.
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SUMMARY OF THE PROPOSED AGREEMENT:
1. The term of the agreement will be for three years unless terminated as provided by
the agreement.
2. As compensation for the free rent at the Balboa Yacht Basin, Sailing Fascination
will provide sailing instruction to handicapped sailors free of charge.
I Sailing Fascination will provide certificates of insurance to the satisfaction of the
City, naming the City as additionally 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 has the ability to terminate the agreement with thirty days notice to
Sailing Fascination at which point they must remove their boat from the Balboa
Yacht Basin.
This agreement has been reviewed by the City Attorney's office and has been approved
as to form.
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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.
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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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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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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 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.
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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Agreement.
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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
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be addressed to Sailing Fascination at:
Sailing Fascination
4010 Park Newport #224
Newport Beach, CA 92660
12. TERMINATION
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hi 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.
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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.
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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
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EXHIBIT "A"
Duties to be Performed by 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.
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 Fascinations 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.
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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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Exhibit B
(2 of 2)
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