WAKE SPORTS COLORADO LLC BOAT CLUB TERMS AND CONDITIONS
Welcome to the Wake Sports Colorado Boat Club! These Terms and Conditions supplement the Agreement between you and the Wakes Sports Colorado, LLC, a Colorado limited liability company (the “Club” or “WSC”). Your access to Club boats is expressly conditioned upon your compliance with these Terms and Conditions.
MEMBERSHIP. A membership is intended for a single household. An approved Associate Member may only be a spouse, a direct descendant of the primary member, or other approved member of the family. A primary Member’s friend, business partner, brother/sister that lives in a different home, etc. will need to purchase their own membership to have access to Club boats. Each membership is subject to periodic review for compliance with this Section. Both the primary Member and each Associate Member must receive training and be approved by the Club pursuant to Section 3.1 below before they can use Club boats. A membership may be held in a trust, LLC, or corporation, but such membership will still need to identify the primary Member and each approved Associate Member in compliance with the terms and conditions set forth herein.
BOAT RESERVATIONS AND ACCESS.
KEY DEFINITIONS. The following definitions are used in connection with boat reservations:
“Prime Days” are Saturdays, Sundays, state holidays, major federal holidays, the day before and the day after major federal holidays, and any other days designated as Prime Days from time to time on the Club’s current member calendar. Prime Days may apply differently to specific lakes depending on geographic location and demand. Summer holidays on local lakes (e.g., Memorial Day, 4th of July, Pioneer Day) will incur additional fees based on the current year price sheet. Prime Days do not apply to Destination Lakes.
“Regular Days” are any days other than Prime Days that a boat is available for use. Regular Days do not apply to Destination Lakes.
“Drop in Days” are days that are scheduled on short notice (i.e., same day or next day) at a local lake, and may occur on a Prime Day or a Regular Day. The availability of Drop in Days may vary based on the specific local lake and the applicable season. Drop in Days will not be used or applied until all of Member’s Prime Days and Regular Days have been exhausted.
“Vacation Reservation” means any reservation for three to five days for use of a Club boat. All Vacation Reservations are subject to approval by the Club.
SCHEDULING POLICIES. Reservations should be made through the Club’s online reservation platform. Reservation inquiries may also be made by contacting the Club office by telephone. To be effective, the Club must verify availability and confirm each reservation by telephone, e-mail or other electronic notification. Each Member will be granted a single username and password to access the online reservation platform.
Local Lake Reservations. Members generally cannot have at any one time more than two (3) pending reservations on the Club’s member calendar. The number of Prime Days and Regular Days allocated to Member is based on the Membership Option selected on the first page of the Agreement. After all Prime Days and Regular Days are used for the season, Drop in Days, if available, will apply.
Vacation Reservations. If a Member desires to reserve a boat (including a stow-in-tow boat) for up to Seven consecutive days, Member may submit a request for a Vacation Reservation, subject to (i) approval by the Club, (ii) sufficient availability of boats during the requested time period, (iv) compliance with the geographic limitations imposed by the Club from time to time. Member will be charged for Prime Days and Regular Days based on the calendar days included in such Vacation Reservation. Please note that additional fees may apply if a boat is used at a lake not supported by the Club.
Engine Hours Limitation. All reservations (including at Destination Lakes) require use of a boat to be limited to 6 engine hours or less per day/session. If a Member exceeds 6 engine hours per day/session, that Member may be assessed additional days or engine hour fees by the Club. Excess engine hour fees are currently charged at the rate of $100 per hour.
SPECIAL EVENTS. If special events are occurring on a specific lake (e.g., air-shows, fireworks, July 4th celebration, etc.), the Club may conduct a lottery drawing with those Members that have submitted a request by a specified deadline. The Club reserves the right to charge additional fees for such special events.
CANCELLATIONS. Members may cancel a local lake standard reservation without penalty if the cancellation occurs more than 48 hours prior to the scheduled time of use. Cancellations within the 48-hour period or “no-shows” will count as time used. Cancellations due to weather will count as time used with the exception of days when winds are gusting (or forecast to gust) over 30 mph, or there is lightning or thunder in the immediate area (as verified by the Club in its sole discretion), or rain is forecast for a period of more than 3 hours. Aside from these exceptions, inclement weather is not a reason for canceling or rescheduling given the subjectivity of weather disturbances. However, based on boat demand and availability, the Club will try to use discretion in applying this inclement weather policy. Although the Club will use good faith efforts to make a boat available for each reservation, Member hereby acknowledges that a reservation does not guaranty that a boat will be available at the reserved time. The Club reserves the right to cancel any reservation (including without limitation a reservation provided that the Member will not be charged for the use of a boat for such cancelled reservation.
CLUB POLICIES AND PROCEDURES. The Club Policies, as adopted by the Club from time to time, are hereby incorporated into these Terms and Conditions by this reference. The Club Policies may modify, clarify and refine issues regarding scheduling, use and care of boats, and assessments. The current Club Policies may be obtained from time to time from the online portal or upon written request to the Club. Member acknowledges and agrees that use of Club boats is expressly conditioned upon compliance with the Club Policies.
TERM. Unless otherwise terminated as contemplated herein, the Agreement will continue for the number of years specified in the Membership Option on the first page of the Agreement and used to determine the Total Enrollment Fee.
BOAT USE.
EXPERIENCE AND TRAINING. Member understands and agrees that it is absolutely critical for such Member and his/her Associate Members to have the experience and skills necessary to safely transport and operate boats offered by the Club. Under no circumstances may a Member or Associate Member use a Club boat without sufficient experience, skills, and training. If a Member knowingly makes inaccurate representations about his/her experience and training, the Member will reimburse, indemnify and hold the Club harmless for damages and losses incurred as a result of avoidable mistakes made by such Member or Associate Member. Each Member or its Associate Member shall submit a boating resume as part of the Member’s application to join the Club that is reviewed and approved by the Club. Under no circumstance may such internal review and approval by the Club be deemed a confirmation or verification of a person’s actual experience, skills or training needed to safely operate a Club vessel; and under no circumstance may such internal review and approval process be used or relied upon by Member or a third party to make a claim against the Club. In addition to a Member’s approved boating experience, each Member will be given a one-time orientation on how to prep, load, unload, clean and transport boats. Each Member is solely responsible to make sure Member and any Associate Member is adequately trained concerning the safe and effective methods to transport, operate, clean and maintain the Club’s boats and trailers. Member represents and warrants to the Club that Member has sufficient experience, or has arranged or will arrange for instruction to obtain sufficient knowledge and experience, to safely operate and transport boats, and is confident that he or she (or each Associate Member) will be capable of safely operating a boat under any and all conditions which may arise. Member further represents that Member is aware that weather and other conditions beyond his/her control can (and do) rapidly change and can substantially increase the risk of operating a boat, and will require a Member or Associate Member to take proactive measures to reduce such risk. At a minimum, a Member should always check weather forecasts, continually monitor developing weather conditions while using/transporting a boat, and avoid launching or retrieving a boat when unsafe to do so.
BOARDING CHECKLIST. Upon boarding a boat for use, the Member is required to perform the safety and inventory checks on the boat in the manner prescribed by the Club from time to time. This checklist will prompt each Member to check, among other things, the boat’s safety gear, engine hours, propeller, and basic systems prior to leaving the dock. Members are also responsible to check the condition of all toys, surfboards, wakeboards, recreation equipment, life jackets, electronics, gear, trailer locks, or any other accessories that are provided by the Club for a particular boat (the “Accessories”). Members are required to contact the Club and promptly report any issues that arise from the Member’s safety check and general review of the boat and Accessories prior to using the boat. This includes maintenance and cleanliness issues that may have arisen from the use of the boat by the prior member. In the absence of prompt reporting to the Club, any issues with a boat or Accessories may be attributed to the Member who fails to report such issues.
GUESTS. Member agrees that all persons on a Club boat will be deemed the guests and invitees of Member. Member shall be solely responsible for notifying such guests of all inherent and potential dangers associated with the use and enjoyment of a boat and the Accessories. Member agrees that the Club owes no duty of any kind or nature to the Member’s guests/invitees relating to the use, safety and operation of a boat, and Member agrees pursuant to Section 5.7 to indemnify, defend, and hold the Club harmless for any claims made by Member’s guests/invitees against the Club.
NO GUARANTY OF BOAT OPERATING FEATURES. The Club makes no guaranty of the make, model, year, features, wake, or the condition of a boat made available to Member from time to time.
RETURNING THE BOAT. In returning a boat, the Member is obligated to follow instructions on how to stow gear, clean, and secure the boat (including without limitation, lowering the bimini top before transport!). While the Club is passionate about boating, each Member must be passionate about cleaning each boat after use. In order to properly return a boat to the Club, Member must confirm through the mobile app that the boat has been left in a clean and organized condition consistent with the Club’s standards, and that any issues that arose during its use have been reported to the Club. Member may be charged additional fees by the Club if Member does not return a boat to the proper location, in the proper condition, fully fueled, and by the agreed upon time. Multiple incidents of deficient cleaning, late check-out, or violations of Club Policies for return of a boat may result in suspension of further use of Club boats.
RESTRICTIONS ON USE. Member’s use of Club boats is subject to the following strictly enforced restrictions:
The boats may only be used by the Member and his or her approved and trained Associate Member(s). Member is fully responsible for any reservation and use of a boat connected with such Member’s username/membership. Notwithstanding anything herein to the contrary, the use of a Club boat is expressly conditioned upon a Member or Associate Member being present at all times during the use or transport of such boat. Failure to abide by such condition may result in fines, suspension, and/or cancellation of membership without refund.
Because of insurance restrictions, Club boats may not be used to carry passengers or cargo for hire as part of a trade or business.
Operation of a boat while intoxicated or under the influence of a controlled substance is strictly prohibited. Any such violation may be reported to authorities (based on substantiating evidence), and may result in the cancellation of a Member’s membership without refund.
Member shall operate Club boats in compliance with all relevant laws and regulations of the applicable jurisdiction(s), and Member is solely responsible for identifying all such laws and regulations. If a state requires a separate boating license, Member agrees not to operate a Club boat in that state until such license is obtained.
Member shall ensure that an assigned boat will at all times be operated in a seamanlike manner with due regard being paid to the preservation of a boat and its Accessories, and in accordance with Club Policies and any instructions given to Member or any guest of the Member by the Club.
NIGHT SURFING IS STRICTLY PROHIBITED! Operating a Club boat before dawn or after dark (i.e., nautical twilight) is also strictly prohibited. In the event of damage to a boat or Accessories because of a violation of this section, Member will be liable to the Club for all damages incurred, regardless of whether any insurance proceeds are available to the Club. Boats must be off the water by nautical twilight (which generally occurs about 30 minutes after sunset), or if in Member’s care overnight, secured or anchored by nautical twilight. A violation of this section is grounds for immediate cancellation of membership without refund.
Each boat is limited to the maximum number of people indicted by the Coast Guard Capacity indicator on such boat.
Boats may not be used for fishing of any kind.
The use of Club boats may be suspended if payments are not current for (i) Monthly Dues and (ii) all other assessments against Member under the Terms and Conditions and the Club Policies.
A Club boat may only be used on a lake approved by the Club, but subject to periodic restrictions during a season for specific lakes based on water levels, algae, health or safety concerns, etc.
REMEDIES FOR USE VIOLATIONS. Upon any violation of the above described use restrictions, the Club reserves the right, in its sole discretion, to (i) issue a warning, (ii) impose fines on the Member, (iii) recover reimbursement from the Member for costs incurred by the Club as a result of any such violation, (iv) require that the Member receive additional boat training before further use of a boat, (iv) suspend membership, (v) impose restrictions on the Member for use of Club boats, and/or (vi) if sufficiently egregious, terminate the Member’s membership in the Club with no refund. If any use violation by Member results in an impoundment of a boat, in addition to other charges that may apply, Member will be assessed a fine in the amount of $1,000 per day for each calendar day that the boat is not available for use by the Club.
MEMBERSHIP FEES AND ASSESSMENTS; PAYMENT. The Enrollment Fee indicated on the Agreement must be paid upon execution of the Agreement by the Member. Member’s ability to make reservations and the right to use Club boats are conditioned upon timely payment in full of the Enrollment Fee, remaining current on Monthly Dues, and prompt payment of any assessment against the Member under these Terms and Conditions or the Club Policies. Any amount owed to the Club that is not paid when due shall accrue interest at the rate of 1 1/2% per month. All applicable state and local sales taxes payable by Member are in addition to the stated Enrollment Fee, Monthly Dues, and assessments. The Club may terminate membership if Member is more than 30 day’s delinquent in the payment of Monthly Dues and/or assessments.
MONTHLY DUES. Monthly Dues shall be paid on or before the 5th day of each calendar month (prorated for any partial month) by check, credit card or ACH transfer during the term of the Agreement. The Monthly Dues are subject to evaluation and modification each year based on the projected cost to purchase additional boats, sales proceeds from the sale of Club boats, operating costs, repair and maintenance costs, and other Club expenses. Member will be notified at least 60 days in advance of any modification to the Monthly Dues.
ASSESSMENTS. All charges for Add on Days, Drop in Days, Vacation Reservations, damage to boats, trailers and Accessories, and all other charges, fines, expenses, or other amounts payable by Member under the Agreement, these Terms and Conditions, and the Club Policies, shall be referred to herein as “assessments” that are due and payable upon demand by the Club. Member acknowledges and agrees that the Club may impose from time to time assessments under the Club Policies.
DAMAGE; LIABILITY MATTERS.
DAMAGE. Member understands and agrees that Member is responsible for the first $5,000 of damage and/or loss per incident (the “Incident Damage Amount”) that occurs while a boat and trailer have been made available to Member and/or his or her Associate Member, including damage or loss to Accessories. Member must give the Club prompt notice of any loss, accident, breakdown, or other incident involving damage or loss to a boat, trailer, or Accessories. Prompt notice of damage or loss is critical in order for the Club to be able to make good faith efforts to repair the damage or loss prior to the use of the boat by other members of the Club. Member will be responsible for loss or damage resulting from a failure to give notice to the Club of damages or lost equipment. In the event of loss or damage, Member shall take all reasonable measures to preserve the boat, trailer, and Accessories, but shall not attempt to make any material repairs (personally or by professionals) without specific authorization from the Club. The Club will not be required to reimburse Member for repairs to a boat, trailer or Accessories, or the purchase of new Accessories, unless specifically pre-authorized by the Club. Member shall comply with and be bound by the terms, conditions and limitations of the Club’s applicable insurance policies, and shall cooperate with the Club in the event of any claim or suit that involves Club property. In addition to the Incident Damage Amount payable by the Member, if a Club boat is not available to be used by the Club because of actions of Member (including damage or loss), then the number of days that the boat is not available to the Club will be counted as days used by such Member. If damage to a boat occurs at a Destination Lake or another lake that is more than 100 miles from a supported Club maintenance facility, then a $500 towing fee plus actual storage charges will be assessed against the Member.
DAMAGE DEPOSIT. Member is required to pay a non-refundable “Damage Deposit” to be held by the Club and applied against any damage or loss to a boat, trailer or Accessories. The base Damage Deposit is $1,000; provided, however, that the Club reserves the right at any time to increase the Damage Deposit for Member based on losses or damages incurred, violations of use restrictions, claims made, boating experience, and other factors for Member deemed relevant by the Club in its sole discretion. The Damage Deposit may be applied against repairs, wear and tear, service calls, loss of use, insurance deductibles, assessments against Member for use violations, and other charges permitted to be made by the Club against the Member because of the use of a boat and trailer by Member; and Member agrees to promptly restore the amount of the applicable Damage Deposit upon request by the Club. Member understands and agrees that the Damage Deposit in no event limits Member’s liability to the Club, but instead may be applied against any amount owing to the Club by the Member.
INSURANCE MAINTAINED BY MEMBER. Member agrees only to transport boats using a vehicle that is licensed and insured, and with sufficient towing capacity for the applicable boat. Member agrees that such auto insurance policy shall be primary with respect to any damage or accident that occurs with respect to the trailer, or any damage or accident to a boat while it is on the trailer and in Member’s custody or control. Members are strongly encouraged to use vehicles that have comprehensive insurance coverage and towing coverage.
INSURANCE MAINTAINED BY THE CLUB. Member’s use of Club boats on an authorized lake is covered by the Club’s property and liability insurance policy that insures against standard marine perils, but subject to a physical damage deductible clause that is in excess of the Incident Damage Amount. The Club reserves the right to create a loss reserve in order to self-insure for smaller claims.
ASSUMPTION OF RISK; WAIVER OF LIABILITY. MEMBER ACKNOWLEDGES THAT BOATING (INCLUDING TRANSPORTING AND OPERATING A BOAT, AND ALL WATER ACTIVITIES ASSOCIATED THEREWITH) HAS MANY INHERENT DANGERS. MEMBER, ON BEHALF HIMSELF, HIS ASSOCIATE MEMBERS, AND ALL GUESTS AND INVITEES, HEREBY ASSUMES ANY AND ALL RISKS ASSOCIATED WITH MEMBER’S USE OF BOATS, TRAILERS, ACCESSORIES, AND ALL BOATING ACTIVITIES. THE CLUB PROVIDES ABSOLUTELY NO EXPRESS OR IMPLIED WARRANTIES REGARDING THE BOATS, TRAILERS AND ACCESSORIES PROVIDED BY THE CLUB, AND THE CLUB SHALL HAVE NO RESPONSIBILITY OR LIABILITY FOR ANY ALLEGEDLY DEFECTIVE CONDITION OF THE BOATS, TRAILERS AND ACCESSORIES. MEMBER FURTHER ACKNOWLEDGES AND AGREES THAT ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR USE IS HEREBY DISCLAIMED BY THE CLUB. TO THE FULLEST EXTENT PERMITTED BY LAW, MEMBER HEREBY RELEASES THE CLUB AGAINST ANY DAMAGES, INJURIES, LOSSES OR CLAIMS ARISING FROM BOATING ACTIVITIES WHILE A BOAT/TRAILER IS UNDER THE CARE OR CUSTODY OF SUCH MEMBER OR ASSOCIATE MEMBER, EXCEPT FOR A MATTER CAUSED SOLELY BY THE GROSS NEGLIGENCE OF THE CLUB.
INDEMNIFICATION. MEMBER AND HIS/HER HEIRS, EXECUTORS, ADMINISTRATORS, SUCCESSORS, OR ASSIGNEES, DO HEREBY EXPRESSLY STIPULATE AND AGREE TO RELEASE, DEFEND, INDEMNIFY AND HOLD FOREVER HARMLESS, THE CLUB AGAINST ANY AND ALL CLAIMS, DEMANDS, LOSSES, DAMAGES, INJURIES, AND ACTIONS OF ANY KIND OR NATURE (COLLECTIVELY, “CLAIMS”), WHICH MAY HEREAFTER AT ANY TIME BE MADE OR INSTITUTED AGAINST THE CLUB, ITS SUCCESSORS, ASSIGNS, OWNERS, EMPLOYEES, OFFICERS, PRINCIPALS, AND AGENTS, WHICH MAY NOW OR AT ANY TIME IN THE FUTURE, ARISE OR BE ASSOCIATED WITH MEMBER AND THE OPERATION, TRANSPORT, STORAGE, CARE, AND/OR USE OF THE BOATS BY MEMBER AND HIS/HER ASSOCIATE MEMBERS, GUESTS AND INVITEES, UNLESS ANY SUCH CLAIM IS CAUSED SOLELY BY THE GROSS NEGLIGENCE OF THE CLUB. MEMBER FURTHER AGREES TO REIMBURSE OR PAY DIRECTLY UPON DEMAND BY THE CLUB ANY SUCH LOSS, DEMAND OR COST ARISING FROM A CLAIM, INCLUDING REASONABLE ATTORNEY’S FEES, WHICH THE CLUB, ITS SUCCESSORS, ASSIGNS, OWNERS, EMPLOYEES, OFFICERS, PRINCIPALS OR AGENTS MAY HAVE TO PAY IF ANY LITIGATION ARISES FROM ANY SUCH CLAIM.
TRANSFER; SUCCESSOR AND ASSIGNS. Member’s membership in the Club is nontransferable. Any attempted transfer of a membership interest is void without the prior written consent of the Club. The provisions hereof shall be binding upon and inure to the benefit of the parties, their successors and assigns.
AMENDMENT. Scheduling and operational issues described herein may be changed in the reasonable discretion of the Club from time to time as may be set forth in the Club Policies. Material provisions of this Agreement may be changed if needed to accommodate changes to the structure, operation, and/or expansion of the Club, so long as such change(s) also apply to other similarly situated members of the Club. This form may not be modified without the prior express written consent of an authorized officer of the Club.
MISCELLANEOUS. The Agreement and the relationship of the parties shall be construed and interpreted pursuant to the laws of the State of Utah. In the event of a dispute arising between the parties with respect to the Agreement, such dispute shall be resolved by the decision of a single experienced arbitrator chosen by random drawing from nominations submitted by each of the Club and the Member, located in Utah County, Utah. The decision, in writing, signed by the arbitrator, shall be final and binding upon all parties. The expense in connection with any such arbitration shall be divided equally between the parties. To the extent that any provisions of the Agreement are determined by a court of competent jurisdiction to be invalid or unenforceable, such provisions shall be deleted from the Agreement or modified so as to make them enforceable and the validity and enforceability of the remainder of such provisions and of the Agreement shall be unaffected. The Agreement (including these Terms and Conditions and Club Policies enacted by the Club from time to time), contains the entire understanding and agreement between the parties related in any way to its subject matter. The Agreement supersedes any and all other agreements and understandings, whether oral or written, related in any way to its subject matter. The Agreement may not be modified or amended except by a written agreement that refers to the Agreement and is signed by both the Club and the Member. Member’s indemnification obligations set forth herein, and Member’s obligation to pay dues and assessments payable during the term of the Agreement, shall survive termination/cancellation of the Agreement.