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HomeMy WebLinkAboutC-3508 - Vessel Mooring Agreement to Berth at the Balboa Yacht Basinr" BALBOA YACHT BASIN 829 Harbor Island Drive Newport Beach, CA 92660 14 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: 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 quarter. This instruction will be provided free of charge and shall conform to the curriculum C -.596 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, l 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 Owner's 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. Q) 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: • ( "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 Sublettina. 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 Citys 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. • 6 (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) Iniurv. 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 Marina, or any other cause beyond City's control. • i• 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 Owner's 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 bome 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 Owner's 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) Attomevs 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 attorneys 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 ( .0 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. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year here written. CITY OF NEWPORT BEACH VESSEL OWNER(S):L //pG X1-5 LC1G, Drivers License Number Social Security Number Date of this Agreement: I ITEM 22 3p TO: Members of the Newport Beach City Council 1 .&M� o FROM: Tony Melum, Division of Harbor Resources cat .v SUBJECT: Vessel Mooring Agreement between the City of Newport Beach and Sailing Fascination to berth at the Balboa Yacht Basin 110� RECOMMENDED ACTION: Authorize the Mayor to execute the attached Vessel Mooring Agreement between the City of Newport Beach and Sailing Fascination, a California Public Benefit Corporation. BACKGROUND: Sailing Fascination, Inc. (SF), a California Public Benefit Corporation was initially organized to teach boating safety and sailing to disabled individuals. In late 1996, they received two grants from the California Department of Boating and Waterways, which allowed them to purchase and outfit a J -24 sailboat for the above purpose (see attached photo, Exhibit C). They also have received donations from local businesses to further equip this vessel. In May of 1997, SF approached the City with a proposal to allow them to berth their vessel at the City's marina (Balboa Yacht Basin) rent -free. In lieu of rent ($6,720.00 per year) SF was to provide boating safety and sailing classes for free to persons with physical and /or mental disabilities. The City Council approved their request and since that date, SF has graduated over 100 students from their program, outlined in detail in exhibit B of the attached agreement. The original agreement has expired and SF wishes to enter into another agreement with the City for a three -year period. At current slip rates, the loss of revenue to the City would be $7,140.00 per year. Based on periodic telephone interviews of students who have participated in the program and observations by Balboa Yacht Basin staff, the program appears to be well run and effective. Staffs recommendation would be to renew the agreement for another three -year period. 0 0 Summary of the Proposed Agreement: 1. The term of the agreement will be for three years unless terminated as provided by the agreement. 2. In lieu of rent for the 3-year period, Sailing Fascination will provide sailing instruction through graduation to a minimum of 7 disabled sailors per quarter free of charge. 3. 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 may 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. 0 0 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 quarter. This instruction will be provided free of charge and shall conform to the curriculum outline and class scheduled marked in Exhibit "A" and Exhibit "B" which are attached hereto and incorporated herein by this reference. 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. 7. 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, 0 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 Owner's 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. Q) 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: 0 0 "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, ir1 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. r E (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) Ind, 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 Marina, or any other cause beyond City's control. 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 Owner's 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 bome 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 Owners breach, including, without limitations, the right to recover the mooring fees due under this Agreement as the same shall accrue, or terminate Vessel Owner's 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 0) 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 0 0 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, Go 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. I 0 r IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year here written. CITY OF NEWPORT BEACH VESSEL OWNER(S): Drivers License Number Social Security Number Date of this Agreement: �`l 0 0 EXHIBIT "A" Duties to be Performed by Sailing Fascination 1. Provide sailing instruction to disabled individuals. 2. Provide sailing instruction on a regularly scheduled basis. 3. Begin sailing instruction by January 22, 2002. 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 program. 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. E Exhibit "B" (1 of 2) SAILING FASCINATION Lesson Plan Contents PART ONE r 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 i71:i&-►'kT 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 .n G x H s u. G N Y a — O C N 1 O N � N OO' o O mN o o d Z c0 w M C ZOOd ? v 0 O O O c O 6 U N N U VO V 0 QV U V v 3 a C c C CS Y C «9 C9 ,2 V N «f '0y Y. 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