Fan Pier Development, LLC, a Delaware limited liability company
One Marina Park Drive, Boston, MA 02210
Kevin Lussier CMM, or such other individual or entity as may be designated from time to time by Licensor
One Marina Park Drive, Boston, MA 02210
May 1, 2017 though and including October 31, 2017
LICENSE FEE FOR INITIAL TERM:
1) $ __________________________
Licensor hereby licenses to Licensee 1 slips in the Fan Pier Marina (the “Marina”) having a minimum length of (’) feet, the location of which shall be designated by Licensor in its sole discretion from time to time during the Initial Term.
Licensor hereby licenses to Licensee in the Fan Pier Marina (the “Marina”) having a minimum length of (00’)feet, the location of which shall be designated by Licensor in its sole discretion from time to time during the Initial Term.
Except as otherwise set forth in this Agreement, the term of the license conferred herein shall be for the Initial Term specified in Section 1 hereof. This Agreement may be terminated by Licensee upon thirty (30) days prior written notice to Licensor of termination. This Agreement may be terminated by Licensor upon ten (10) days prior written notice to Licensee by reason of the default of the Licensee as provided in Section 29. No portion of the License Fee for the then current season shall be refunded in the event of termination under either of the foregoing provisions.
5) LICENSE FEE
Within thirty (30) days of the submission by Licensor to Licensee of an invoice therefore, Licensee shall pay to Licensor the License Fee for the Initial Term specified in Section 1 hereof.
Electricity will be a flat fee or metered with a service charge. Licensee shall pay all such bills and/or invoices in accordance with the provisions of this Agreement including, but not limited to, Section 6.
7) PAYMENT OF BILLS
Licensee shall pay any bills and/or invoices rendered to Licensee by Licensor under the provisions of this Agreement (including without limitation under Sections 4, 5, 9, 10, 13, 15, 17 and 30 hereof) within thirty (10) days of billing. Payments shall be made to Licensor at Licensor’s Address specified in Section 1. All checks are to be made payable to Fan Pier Marina Management LLC, .
8) USE OF MARINA FACILITIES
During the Initial Term, provided that Licensee is not in default hereunder and except as otherwise set forth herein, Licensee shall have the right to use the piers, docks, and floats in the Marina for access by foot to the Slip, subject to (i) the right of all licensees of the Marina to use such facilities, and (ii) with respect to that portion of the Marina consisting of a 400 lineal feet of wave attenuator varying in width from 20’ to 30’ (the “Wave Attenuator”), the right of the general public to use such Wave Attenuator as a public open space.
9) REPRESENTATION OF LICENSEE REGARDING VESSEL
Licensee represents and warrants to Licensor that the information set forth in Section 1 above is true, correct and accurate.
10) USE OF THE SLIP FOR VESSEL
Licensee shall use the Slip for mooring the Vessel specified in Section 1 above. If Licensee wishes to change the vessel for which he may use the Slip to a different vessel (the "New Vessel"), Licensee must notify the Dock master of the proposed change and provide the Dock master with all the information required in Section 1 with respect to the New Vessel. Licensee may not use the Slip for the New Vessel unless and until Licensee obtains the Dock master’s written consent, which consent shall not be unreasonably withheld. If the Dock master gives consent to the proposed vessel change, the License Fee may be increased for the then current season based upon the length of the New Vessel if the New Vessel is longer than the original Vessel, but Licensor shall be under no obligation to reduce the License Fee for the then current season. Upon a change of the vessel for which Licensee may use the Slip pursuant to this Section 9, the term "Vessel" as used herein shall thereupon be defined to mean the New Vessel and all provisions hereof shall pertain to the New Vessel.
11) MOORING OF VESSEL
Licensee shall moor the Vessel at the Slip so that the Vessel is securely tied and creates no risk of injury to any person and no risk of damage to other vessels, the Slip, or the Marina. Lines used to secure the Vessel shall be of sufficient size and quality to ensure safe mooring. Licensee shall not moor the Vessel or any dinghies used in connection therewith so that the Vessel or such dinghies obstruct the free passage of other vessels. Dinghies shall be stored aboard the Vessel moored at the Slip if feasible. Licensee shall cover any open Vessel and shall tie all halyards away from the mast before leaving the Vessel. Any fenders used by Licensee shall be attached only to the Vessel and not to the Slip or any pier, dock, ramp or float. If the Slip is a stern-to mooring on the seaward side of the Wave Attenuator, Licensee shall remove the Vessel from the Slip when sustained wind speeds are in excess of 60 MPH. If the Vessel is not, in Licensor's sole opinion, safely or properly moored or is moored in any manner which creates an obstruction to other vessels, or if Licensee shall fail to remove the Vessel from the Slip as required in the preceding sentence, Licensor may, but shall have no duty or obligation to, take any actions necessary to correct such conditions, including without limitation, re-mooring the Vessel, securing the Vessel with different or additional lines, moving the Vessel to another berthing at the Marina or removing the Vessel from the Marina. Should Licensor take any such actions, Licensee shall upon receipt of invoice pay Licensor for the services provided and reimburse the Licensor for any costs and expenses incurred.
12) CARE OF SLIP
Licensee shall maintain the Slip and immediately adjacent areas in a clean condition. Licensee shall not paint, decorate, embellish, change, and make any alterations or additions to, strip or waste the Slip or any areas in the Marina.
13) PROHIBITED ACTIVITIES
Neither the Licensee nor his family, friends, relatives, crew, invitees, visitors, agents or servants shall make any unlawful, noisy or offensive use of the Slip or the Marina, nor create any nuisance or cause any damage to the Slip or the Marina, nor disturb or interfere with the rights, comfort, safety or enjoyment of other licensees of the Marina, nor make any use whatsoever of the Slip other than as a berthing or mooring for the Vessel. The following activities are prohibited at the Slip, on the Vessel, and in the Marina: the making of any fires (except in fixed stoves in the Vessel galley); use or storage of any flammable materials (other than gasoline or diesel fuel in the Vessel fuel tanks and engine lubricants kept in proper containers); use of paint burners; charcoal cookouts or other forms of outdoor cooking; hanging of clothes, bathing suits, towels or other articles; display of "for sale" signs or any other type of signs; advertising or soliciting; loud, lewd or offensive behavior; loud playing of televisions, radios, tape players, record players or compact disc players; sounding of horns, idling of engines except for normal warm-up period prior to departure from the Slip; storage of any gear, equipment, supplies or other materials on or obstructing the piers, docks, ramps, floats and common areas of the Marina or the construction thereon of any steps, lockers, chests, cabinets or similar structures without first obtaining the permission of the Dock master, which permission may be withheld in such Dock master’s sole discretion; cleaning of fish; and discharge of gasoline, oils, flammable substances, sewerage, contaminated wastes or refuse into the water or onto the piers, docks, ramps, floats or common areas of the Marina. No pets shall be allowed unless on a leash, and pets shall not be left tied to any portion of the piers, docks, ramps, floats or common areas of the Marina. The Vessel may not be used as a primary or seasonal place of residence. Without limiting the generality of this Section 12 or any other provision of the Agreement, the overboard discharge from marine toilets is expressly prohibited.
LICENSEE ACKNOWLEDGES THAT THE SLIP AND THE MARINA ARE IMMEDIATELY ADJACENT TO BUILDINGS USED FOR BUSINESS PURPOSES, THAT THE PROVISIONS OF THIS AGREEMENT WITH RESPECT TO PROHIBITED ACTIVITIES ARE FOR THE BENEFIT OF THE OCCUPANTS OF SUCH ADJACENT BUILDINGS, AND THAT THE LICENSOR WILL STRICTLY ENFORCE COMPLIANCE THEREWITH.
14) COMPLIANCE WITH LAWS
Licensee shall comply with all applicable laws, ordinances, rules and regulations in his operation of the Vessel and his use of the Slip and the Marina, including, without limitation, all applicable laws, ordinances, rules and regulations of the United States Environmental Protection Agency, the Massachusetts Department of Environmental Protection, the Department of Homeland Security, the Army Corps of Engineers, and the Boston harbor master. Licensee shall upon receipt of invoices therefore reimburse Licensor for any costs incurred by Licensor because of Licensee's failure to comply with any such law, ordinance, rule or regulations.
15) DISPOSAL OF WASTE OILS, BILGE WATER AND OTHER REFUSE
Licensee shall dispose of all non-flammable refuse, after first placing such refuse in plastic garbage bags, in the refuse containers marked "Refuse Only" provided by the Licensor. Licensee shall not deposit any oils or flammables in the “Refuse Only” containers or elsewhere in the Marina.
16) CONDITION OF VESSEL
Licensee shall at all times maintain the Vessel in a safe and seaworthy condition. Licensee shall not at any time permit the Vessel to constitute a fire or explosion hazard. If, in Licensor's sole judgment, the condition of the Vessel at any time creates a safety hazard, Licensor may, but shall have no duty or obligation to, take any actions necessary to abate the hazard, including without limitation, moving the Vessel to another berthing location at the Marina or removing the Vessel from the Marina. Should Licensor take any such actions, Licensee shall upon receipt of invoice therefore pay to Licensor for the costs of services provided and shall reimburse Licensor for any costs and expenses incurred.
17) WORK ON VESSEL
Licensee shall not perform any work or repairs on the Vessel other than routine maintenance performed by Licensee himself, or engage any outside labor to work on the Vessel without first obtaining the permission of the Dock master, which permission may be withheld in such Dock master’s sole discretion.
18) VESSEL IN SINKING CONDITION
Licensor may, but shall have no duty or obligation to, pump out the Vessel if the Vessel is in a sinking or swamped condition or raise the Vessel if it has sunk. Should Licensor take any such actions, Licensee shall upon receipt of invoice pay Licensor for the services provided and shall reimburse Licensor for any costs and expenses incurred.
19) OPERATION OF VESSEL
Licensee shall operate the Vessel with due care so as to avoid injury to any person and so as to avoid damage to other vessels, property, the Slip and the Marina. Licensee shall further operate the Vessel in compliance with the "Nautical Rules of the Road" as set forth in the International Regulation for the Prevention of Collisions at Sea (COLREGS) and the New Unified Inland Rules. When entering or leaving the Slip or the Marina, the Vessel must be under mechanical power. No sailing will be permitted within the Marina.
20) ASSIGNMENT AND SUBLETTING
Licensee shall not assign or sublet the Slip or permit any vessels other than the Vessel to use the Slip. Licensee shall not assign or sublet his rights or obligations under this Agreement to any person, including, without limitation, in connection with the sale or lease of the Vessel. Any such purported assignment or subletting shall render this Agreement automatically void and of no further force and effect without need for any notice to Licensee.
21) INDEMNIFICATION OF LICENSOR
Licensee shall indemnify Licensor, the Dock master, and Fan Pier Owners Corporation and hold Licensor, the Dock master, and Fan Pier Owners Corporation harmless from and against all claims, demands, causes of actions, suits, losses and damages, including reasonable attorneys fees, arising from injury to any person or damage to any person or damage to any property caused by the Licensee, his family, friends, relatives, crew, invitees, visitors, agents or servants, including without limitation any injury or damage resulting from (a) negligent, careless, improper or unlawful operation, berthing, and mooring of the Vessel, (b) failure to maintain the Vessel in a safe and seaworthy condition and (c) violation of any of the terms and conditions of this Agreement or any rules and regulations promulgated hereunder.
22) LICENSEES PROPERTY AT LICENSEE'S SOLE RISK
The Vessel and all personal property of Licensee kept at the Slip and the Marina shall be at the sole risk of the Licensee. Licensor shall not be liable for damage to or loss of the Vessel or Licensee's other personal property by any cause whatsoever, including without limitation, any fire, explosion, flood, water, theft or vandalism. Licensor shall also not be liable for damage or loss to the Vessel or Licensee's other personal property resulting from Licensor having taken any action with respect thereto which Licensor has the right to take under this Agreement, including, without limitation, any mooring, moving, removal, pumping out, or raising of the Vessel pursuant to Sections 10, 15, 17, 26, and 30 of this Agreement. Licensee understands and agrees that it shall be his own obligation to insure the Vessel and his other personal property. Licensor shall not be required to maintain a watchman or maintain or monitor any mechanical security or fire alarm system.
BECAUSE OF ITS LOCATION IN BOSTON INNER HARBOR, THE MARINA AND THE SLIP ARE SUSCEPTIBLE TO DAMAGE FROM MAJOR STORMS WITH WINDS FROM ANY EASTERLY DIRECTION. WITHOUT LIMITING THE EXPRESS OBLIGATION OF LICENSEE TO REMOVE THE VESSEL FROM THE SLIP SPECIFIED IN SECTION 10, LICENSOR RECOMMENDS THAT LICENSEE RELOCATE THE VESSEL FROM THE SLIP AND THE MARINA TO MORE SECURE AREAS IN ADVANCE OF SEVERE WEATHER.
23) USE OF SLIP AT LICENSEE'S RISK
Licensee, his family, friends, relatives, crew, invitees, visitors, agents and servants shall use the Slip and the Marina at their own risk. Without limiting the foregoing, Licensee acknowledges that the Marina is not lighted and agrees to proceed at his own risk after dusk and before dawn. Except as otherwise provided by applicable law, Licensor shall not be liable for any injury to any of the aforesaid persons.
24) VESSEL INSURANCE
As long as the Vessel is located at the Marina, Licensee shall maintain the Vessel Insurance specified in Section 1 above. The Vessel Insurance shall be from a reputable insurance company satisfactory to Licensor. The Vessel Insurance shall include (a) coverage for damage to the Vessel and its contents under an "all risk" policy, including hull insurance, in an amount at least equal to the Declared Value of Vessel specified in Section 1 and its contents and (b) liability coverage in amounts no less than those specified in Section 1, but in no event less than $250,000 single limit and $500,000 aggregate limit per occurrence. The Vessel Insurance shall name Licensor, Fan Pier Owners Corporation, and the Dock master as additional insured’s with respect to liability coverage and shall provide that such policy shall not be amended or canceled without at least thirty (30) days prior written notice to Licensor and shall provide the Dock master with a Certificate of Insurance naming Licensor, Fan Pier Owners Corporation and the Dock master as Certificate Holder. Licensee shall deliver an original policy evidencing the Vessel Insurance to Licensor upon demand by Licensor.
25) RENTAL OF SLIP DURING ABSENCE OF VESSEL
Before departing from the Slip for a trip from which the Vessel will not return on the same calendar day, Licensee shall notify the Dock master in writing and shall report the duration of time during which the Vessel will be away from the Slip on a temporary basis for Licensor's account during the absence of the Vessel. If Licensee fails to give such notice and the Vessel is absent from the Slip after 4:00 p.m. on the calendar day following the date of departure, or the Vessel fails to return to the Slip by 4:00 p.m. on the calendar day following the estimated date of return reported by the Licensee, or if Licensee shall return to the Marina earlier than the estimated date of return, Licensor shall in such circumstances also have the right to use or rent the Slip on a temporary basis as aforesaid, and Licensor shall have no liability for any inconvenience caused to Licensee should the Slip be occupied upon the return of the Vessel, provided that the Slip is vacated within twenty-four hours after Licensee gives written notice to Licensor of the return of the Vessel, but Licensor shall endeavor to accommodate the Vessel within the Marina upon its return to the Marina. Nothing provided in this Section 24 shall obligate Licensor to report or account for the whereabouts or absence of the Vessel to any party.
26) FIRE, CASUALTY AND EMINENT DOMAIN
Should a substantial portion of the Slip or the Marina be damaged by fire, flood or other casualty or be taken by eminent domain, Licensor may elect to terminate their Agreement upon written notice given to Licensee. If such fire, casualty or taking renders the Slip or the access thereto substantially unsuitable for their intended use, a just and proportionate abatement of the License Fee shall be made, and Licensee may elect to terminate this Agreement upon written notice given to Licensor if:
i) Licensor fails to give written notice to Licensee within thirty (30) days of such fire, casualty or taking of its intention to restore the Slip and the access thereto; or
ii) Licensor fails to restore the Slip and access thereto to a condition substantially suitable for their intended use within sixty (60) days of said fire, casualty or taking.
Licensor reserves and Licensee grants to Licensor, all rights which Licensee may have for damages or injury to the Slip and the Marina for any taking by eminent domain.
27) RIGHT OF ENTRY; RIGHT TO MOVE VESSEL
Licensor may enter upon the Slip to inspect the Slip or the Vessel, to make repairs to the Slip and to take any actions necessary for the operation of the Marina. Licensor may, upon reasonable advance notice to Licensee except in the case of emergency, enter the Vessel to inspect the Vessel, to take any action necessary to enforce Licensee's covenants and agreements under this Agreement, and to take any action necessary in an emergency. Licensor may move the Vessel, after notice to the Licensee, to make any repairs to the Slip or the Marina. Licensor may move the Vessel, without notice to the Licensee, in connection with any actions taken pursuant to Sections 10, 15, 17, and 30 of this Agreement or in the event of any emergency. Licensee shall provide Licensor with a set of main door or hatch keys and ignition keys. Licensor shall return such keys to Licensee upon termination of their Agreement.
28) LATE CHARGES
In the event Licensee fails to pay the License Fee for the Slip or any bill rendered by Licensor when due (including, without limitation, any bills for utilities, for services provided by the Licensor pursuant to the provisions of this Agreement, and for costs incurred by Licensor and to be reimbursed by Licensee pursuant to the terms of this Agreement), Licensee shall, at Licensor's option, pay interest thereon at the rate of two percent (2%) per month during such time as such License Fee or bill remains overdue. Licensee shall further pay any charges, costs and fees, including reasonable attorney's fees, incurred by Licensor in collection of overdue licensee fees or bills.
29) SECURITY FOR UNPAID BILLS
Licensee hereby grants Licensor a security interest in and a lien upon the Vessel for any and all monies due to Licensor under this Agreement which are outstanding, which security interest and lien may be enforced by sale of the Vessel in accordance with the procedures set forth in the Massachusetts Uniform Commercial Code. Licensee further agrees that Licensor shall have a maritime lien on the Vessel for all such monies due and outstanding.
30) DEFAULT BY LICENSEE
In the event Licensee (a) fails to pay Licensor the License Fees or any other amount hereunder when due or (b) fails to comply with any covenant, agreement, condition, duty or obligation stated herein or with any rule or regulation promulgated by Licensor as contemplated by Section 30 hereof, then Licensor may terminate this Agreement upon ten (10) days written notice to vacate the Slip and the Marina. Any termination under this Section 29 shall be without prejudice to any other remedies Licensor may have against Licensee for Licensee's default.
31) REMOVAL OF VESSEL ON TERMINATION
Upon the termination of this Agreement, Licensee shall remove the Vessel and all his other personal property from the Slip and the Marina and shall vacate the Slip and the Marina premises. In the event Licensee fails to do so, Licensor may remove the Vessel and any of Licensee's personal property from the Slip and the Marina and store the same elsewhere, all at Licensee's expense and without liability to Licensee for any loss or damage thereto.
32) OTHER REGULATIONS
Licensor may from time to time establish individual and/or general regulations for the safety, comfort and welfare of the licensees of the Marina and all other persons using the Marina. Licensee shall observe and obey any such rules and regulations.
All notices and other communications required or permitted under this Agreement shall be deemed given if made in writing and, in the case of a notice to Licensee, sent by registered or certified mail, postage prepaid, to the Licensee's Address specified in Section 1 above or delivered by hand to Vessel at the Slip, in the case of a notice to Licensor, sent by registered or certified mail, postage prepaid, to the Licensor at the Licensor's Address specified in Section 1, and in the case of a notice to Dock master, sent by registered or certified mail, postage prepaid, to the Dock master at the Dock master’s Address specified in Section 1, or to such other address as the applicable party may direct by notice similarly given.
34) SUCCESSORS AND ASSIGNS
The words "Licensor" and "Licensee" as used in this Agreement shall include their respective heirs, executors, administrators, successors, representatives, assigns, agents and servants, but this Section 33 shall not be construed to permit the assignment or subletting of the Slip in violation of Section 19 hereof.
The waiver of one breach of any term, condition, obligation or agreement under this Agreement shall not be considered to be a waiver of that or any other term, condition, obligation or agreement or of any subsequent breach thereof.
If any provision of this Agreement, or its application to any circumstance, shall be found to be invalid or unenforceable, the remaining provisions hereof or the application of such provision to all other circumstances, shall not be affected thereby, and shall be fully valid and enforceable.
37) NO INTEREST IN REAL ESTATE
This Agreement confers upon Licensee a revocable license only and does not create in Licensee any interest in real estate. Without limiting the generality of the foregoing, this Agreement is not a lease, and this Agreement may not be recorded, and any attempt to record this Agreement shall render this Agreement automatically void and of no further force and effect without need for any notice to Licensee.