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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. 0 a 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. n U r1 LJ 1J 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. -1- 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 -2- 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 -3- 0 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 -5- 0 Agreement. Pi 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 A 0 be addressed to Sailing Fascination at: Sailing Fascination 4010 Park Newport #224 Newport Beach, CA 92660 12. TERMINATION Eli 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. -7- 0 0 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. am 0 0 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 1 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. -10- 0 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 -11- N x1 W � o 0 0 Exhibit B (2 of 2) r a p C y Oa oc4 m Od wQ•± Ow !� wQ,m. yO c � as °icn :j ao UK °3ON a¢E c vv vUAM -- UV -. cgU C% vu ch vUL2 i+ C V y G V � 3 y w cl a, }9 U U U K yeeacC. -. yzcGa� 417.aC'.. 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