1.TERMS AND CONDITIONS
Referred to in and forming part of the Moorage Lease.
1.01
The terms “Term”, “Moorage Fee”, “Lessee’s Charges”, “Total Rent”, “Utility Charges” and “Parking Fee” have the meanings ascribed in the Recital C of the Moorage Lease.
1.02
The term “Moorage Site” means the portion of the VMM Harbour hereby leased to the Lessee and described by number in Recital C of the Moorage Lease.
1.02.1
“Taxes” means all taxes, rates and assessments, whether general or special, levied or assessed by the City of Vancouver for local improvement, municipal, school or other purposes, or levied or assessed by any other lawful government authorities for such purposes payable to the Lessor in respect of the Moorage Site.
2. TERMS AND CONDITIONS
2.01
The Lease of the Moorage Site is to be for the Term, unless sooner terminated as herein provided, at the Total Rent, payable in lawful monies of Canada in advance.
2.02
The Lessee shall use the Moorage Site and the premises of the VMM Harbour only for the moorage of the Lessee’s vessel and for no other purposes without the written consent of the Lessor. Without limiting the generality of the foregoing, the Lessee shall not:
(a) permit his vessel or the Moorage Site to be used as a domicile;
(b) charter or rent or sell boats or any other products or services at or from the Moorage Site; and
(c) use the Moorage Site for the purposes of carrying on the business of Yacht Brokerage,
2.03 The Museum has the right to request vessels to leave the VMM Harbour for a set period of time when special events require the use of the harbour. A written notice will be issued accordingly.
3. LESSEE’S COVENANTS
3.01
Rent – To pay the Total Rent as set out in Paragraph 2.01 of these Terms and Conditions.
3.02
Utilities
3.02.01
Utility Charges – If Lessee’s Charges are not included in the Total Rent paid by the Lessee pursuant to Paragraph 2.01, the Lessee shall purchase the water and electricity supplied by the Lessor to the Moorage Site and shall pay Lessee’s Charges as additional rent payable on demand to the Lessor.
3.02.02
If at any time upon an inspection by the appropriate Government authorities the wiring at and within the Moorage Site is found to be unsatisfactory with regard to the standards then prevailing, the Lessor may terminate the supply of electricity to the Moorage Site without notice.
3.02.03
In no event shall the Lessor be liable for, nor have any obligation with respect to, an interruption or cessation of or a failure in the water or electricity supply.
3.02.04
In the event the Lessee defaults in the payment of any charges for electricity or moorage, and such default continues for thirty (30) days after the Lessor demanded payment therefore, the Lessor shall have the right to terminate the supply of electricity to the Moorage Site and shall only be required to re-instate the supply of electricity to the Moorage Site upon payment of all outstanding and unpaid Lessee’s Charges to the date of reinstatement together with a reconnection fee of $50.00.
3.03
To keep the Moorage Site in good repair and to maintain the same.
3.04
Waste and nuisance – Not to do, suffer or permit any act or neglect which may in any manner, directly or indirectly, cause injury or damage to the VMM Harbour or which may become a nuisance or interference to any of the other Lessees of the moorage sites in the VMM Harbour, or which may in the opinion of the Lessor render the VMM Harbour or any part thereof less desirable or injure the reputation thereof.
And without limiting the generality of the foregoing not to:
(a) store flammable liquids, oily rags, etc., in or about the Moorage Site;
(b) throw any waste overboard;
(c) pump toilets, bilges or petroleum products while the Lessee’s vessel is in or about the VMM Harbour
(d) use the site or boat workshop for storage purposes. All tenders are to be stored on vessel or off-site.
3.05
Invalidation of insurance – Not to do or permit anything to be done whereby any policy of insurance on the VMM Harbour or any part thereof may become void or voidable or whereby the premium thereon may be increased. The Lessor upon the request of the Lessee will provide the Lessee with a copy of the Lessor’s policy of Insurance.
3.06
Assignment and Sub-Letting – Not to assign or sublet or grant any right of occupancy to the Moorage Site in whole or in part without the prior written consent of the Lessor. The VMM reserves the right to sublet the site and compensate the lessee the current long term moorage rate.
3.07
Observance of the Law – To abide by and comply with at his own expense all laws, rules and regulations of every governmental authority which in any manner relate to or affect the use of the Moorage Site and of the VMM Harbour by the Lessee and to save harmless the Lessor from all costs, charges or damages to which the Lessor may be put or suffer by reason of any breach by the Lessee of any such law, rule or regulation.
3.08
Insurance – To obtain and maintain at the Lessee’s sole expense, a policy of Hull Insurance in an amount not less than the value of the Lessee’s vessel together with:
(i) a policy of protection and Indemnity Insurance in an amount not less than One Million Dollars ($1,000,000); and
(ii) a policy of comprehensive general public liability insurance of not less than Two Million Dollars ($2,000,000) per occurrence in connection with the use and operation of the Lessee’s vessel in or about the VMM Harbour, in which such policy or policies the Lessor shall be a named insured.
(iii) The Lessee shall provide the Lessor with a copy of the Lessee’s insurance policy or policies.
3.09
If the Lessee’s vessel causes any damage to the property of the Lessor to either restore such property to its state before such damage or to pay the Lessor the amount required to restore the property to that state, this restoration or payment to be made within thirty (30) days of the notice to the Lessee of such damage. The Lessee’s liability under this Paragraph 3.09 shall be reduced by the extent to which such damage is caused by the Lessor or the Lessor’s servants or agents.
3.10
To clearly mark his vessel with the name or registration number as required by law, and to clearly mark any dinghies in possession of the Lessee with such name or registration number or the name of the Lessee.
3.11
Not to leave any dinghies in possession of the Lessee on the floats or wings.
3.12
To permit the Lessor to enter and inspect the vessel at the Moorage Site for any reasonable purpose. Failure to inspect the vessel or the Moorage Site shall not impose any liability on the Lessor.
3.13
To inspect his vessel regularly and whenever it would be reasonably prudent to do so.
3.14
When approaching, using or leaving the Lessor’s floats or moorings to do so in a cautious and seaman-like manner so as not to roll up swell or cause damage to the property of the Lessor or of the other Lessees, and in any event not to operate the vessel in or about the VMM Harbour at a speed in excess of 3 knots.
3.15
Not to conduct himself in a manner detrimental to safety or in a manner which interferes with quiet enjoyment of others, and without limiting the generality of the foregoing not to use or permit the use of a reflective type of electric heater or a flame-type heater or oil burner unless the Lessee is in attendance.
3.16
Not to leave his automobile at the ramp approach or loading bay.
3.17
Not to permit children under the Lessee’s guardianship or control who are under the age of 14 years in the VMM Harbour unless such children are accompanied by an adult while in or about the VMM Harbour.
3.18
Not to permit any dogs in the VMM Harbour unless they are on a leash.
3.19
To advise the Lessor of any changes in the Lessee’s address, telephone number(s) and boat or boat description.
3.20
To safely moor his vessel in the Moorage Site and to furnish and maintain his own safe line and chaffing gear (rubber tires, etc), such gear to be attached to the dock or the vessel and not to the float, and not to foul any other berth, boathouse or access thereto with mooring lines.
3.21
When moored at the VMM Harbour, to display Vancouver Maritime Museum–issued interpretive signage on his vessel for public viewing.
3.22
To maintain a functioning automatic bilge pump in his vessel.
4.LESSOR’S COVENANTS
The Lessor covenants with the Lessee:
4.01
Quiet enjoyment – for quiet enjoyment
4.02
Utilities – Upon application and compliance by the Lessee with the provisions of Paragraph 3.02.03 to provide to the Moorage Site:
(a) electrical power; and
(b) water supply
4.03
To provide garbage disposal of a reasonable nature
4.04
To maintain a parking area during the hours of 7:00 am to 11:00 pm and to provide reasonable lighting in that area, and to provide public paid parking on a space available basis.
4.05
To provide reasonable lighting in and about the VMM Harbour, and to provide reasonable security in or about the VMM Harbour.
4.06
Maintenance – To maintain the VMM Harbour of which the Moorage Site forms a part as a first class VMM Harbour, except that this Covenant shall not require the Lessor to provide any maintenance or janitorial services to the Moorage Site.
4.07
Access – To permit the Lessee and all persons lawfully requiring communications with the Lessee access to the VMM Harbour after general public access hours.
4.08
Insurance – Throughout the term of the Moorage to insure the VMM and the City of Vancouver (but specifically excluding any property with respect to which the Lessee is obliged to insure), against damage by fire and extended perils coverage and to carry public liability and property damage insurance with respect to the operation of the VMM Harbour in such reasonable amounts as would be carried by a prudent owner or a similar harbour.
5. INDEMNITY, WARRANTY, ETC.
5.01
Interruption of services – The Lessor does not warrant that any service facility provided by it in accordance with the provisions of these Terms and Conditions will be free from interruption caused or required by any cause which shall be beyond the Lessor’s reasonable care and control. No such interruption shall be deemed to be a disturbance of the Lessee’s enjoyment of the Moorage Site (nor shall the Lessor be liable for injury to or in damages to the Lessee) nor to relieve the parties from the obligations of this Lease. The Lessor shall without delay take all reasonable steps to remove the cause of any such interruption.
5.02
Damage to Property – The Lessor shall not be liable for any injury or damage to the Lessee or any person visiting with the Lessee or any other person or to a property belonging to the Lessee or to any person visiting with the Lessee or any other person while such property is in the VMM Harbour whether such property is being entrusted to any employee or agent of the Lessor or not, and without limiting the generality of the foregoing all boats moored at the Lessor’s floats, or being hoisted, lifted or handled by the Lessor or the Lessor’s servants or agents shall be at the Lessee’s risk and the Lessor shall not be responsible under any circumstance for any loss or damage caused or sustained by such boats whether the same be caused by the negligence of the Lessor, or its servants or other agents or otherwise, provided that the provisions of this paragraph shall not apply in the event of gross negligence by the Lessor, or its servants or agents. And further provided that if and while any of the Lessor’s agents or servants are performing work or tasks of doing anything at the request of the Lessee, such agents or servants shall be deemed to be the Lessee’s agents or servants exclusively.
5.03
The Lessor may at any time for efficient operation of the VMM Harbour, or for any other reasonable purpose, rearrange the position of the Lessee’s vessel without previous notice to the Lessee and the Lessee hereby appoints the Lessor his agent for such purpose.
5.04
This agreement shall be and be deemed to be a contract for storing goods and the provisions of the Warehouse Lien Act, R.S.B.C. 1979, Ch 427 shall apply thereto.
5.05
No purchaser of the Lessee’s vessel in the Moorage Site shall acquire any rights hereunder by such purchase.
5.06
At the expiration of the Term of the Moorage Lease, the Lessee shall forthwith remove his vessel from the Moorage Site. Such removal shall be done at the Lessee’s expense and if the Lessee does not remove his vessel as herein provided, the Lessor may remove the same at the expense of the Lessee and the cost of such removal and any necessary storage charges shall be paid by the Lessee forthwith the Lessor on written demand. The Lessor shall not be responsible for any loss of or damage to the vessel because of such removal, whether the same be caused by the negligence of the Lessor, its servants and agent or otherwise.
6. DISTRESS
6.01
Distress – If the Lessor, being entitled to do so levies distress against the goods and chattels of the Lessee such force as may be deemed necessary for the purpose may be used without the Lessor being liable to any action in respect thereof or for any loss or damage occasioned thereby and the Lessee hereby expressly releases the Lessor, its employees and agents from all actions, proceedings, claims or demands whatsoever for or on account or in respect of any such forcible entry or any loss or damage sustained by the Lessee in connection therewith.
7. PAYMENTS BY TENANT
7.01
Legal Fees, etc. – If the Lessor shall consider it desirable to retain the services of a lawyer or any other person reasonably necessary for the purpose of assisting the Lessor in enforcing any of its rights hereunder in the event of default on the part of the Lessee, he shall be entitled to collect from the Lessee the cost of all such services as if the same were rent.
7.02
Rent Arrears – Any installment of rent or other payment not paid by the Lessee on the due date shall, without prejudice to any other rights of the Lessor arising from such breach, bear interest at the rate of two per cent (2%) per month compounded monthly (equivalent to an effective annual rate of 26.8%) from the time such rent or other payment became due notice of until paid.
8. DEFAULT
8.01
Re-Entry – If and whenever the rent hereby reserved or any part thereof, whether lawfully demanded or not, is not paid when due or in case of breach or non-performance by the Lessee of any of the covenants herein on the part of the Lessee to be observed or performed and any such default on the part of the Lessee shall continue for fifteen (15) days after written notice thereof to the Lessee by the Lessor, or in the case the Moorage Site shall be vacated, or in case the same shall be taken in execution or attachment for any cause whatever, then and in every case, the Lessor in addition to any other remedy now or hereafter provided by law, may at its option cancel this Lease and re-enter and may remove all persons and property therefrom and may use such force and assistance in making such removal as the Lessor may deem advisable and such re-entry shall not operate as a waiver or satisfaction in whole or in part of any right or claim or of any violation by the Lessee of any covenant or agreement on the Lessee’s part to be performed.
8.02
Right to Terminate or Relet – Should the Lessor elect to re-enter and take possession, as herein provided, or should it take possession pursuant to legal proceedings or pursuant to any notice provided for by law, it may either terminate the Moorage Lease or it may from time to time without terminating the Moorage Lease relet the Moorage Site for such term or terms (which may be for a term extending beyond the term of the Moorage Lease) and at such rent and upon such other terms and conditions as the Lessor in its sold discretion may deem advisable upon such reletting all rent received by the Lessor from such reletting for the unexpired portion of the Term of the Moorage Lease shall be applied: 1) to the payment of any indebtedness other than rent due hereunder from the Lessee to the Lessor; 2) to the payment of any costs and expenses of such reletting; 3) to the payment of rent due and unpaid hereunder; and the residue, if any, shall be held by the Lessor and applied in payment of future rent as the same may become due and payable hereunder. If such rents received from such reletting during any month be less than that to be paid during that month by the Lessee hereunder, the Lessee shall pay such deficiency to the Lessor. Such deficiency shall be calculated and paid monthly. No such re-entry or taking possession of the Premises by the Lessor shall be construed as an election on its part to terminate the Moorage Lease unless a written notice of such intention is given to the Lessee. Notwithstanding any such reletting without termination, the Lessor may at any time thereafter elect to terminate the Moorage Lease for any breach, in addition to any other remedies it may have, it may recover from the Lessee all damages it may incur by reason of such breach, including the cost of recovering the Moorage Site, reasonable solicitor’s fees, and including the worth at the time of such termination of the excess, if any, of the amount of rent charges equivalent to rent reserved hereby for the remainder of the stated term over the then reasonable rental value of the Moorage Site for the remainder of the started term, all of which amounts shall be immediately due and payable by the Lessee to the Lessor.
8.03
Bankruptcy, etc. – If the term hereby granted or any of the goods or chattels of the Lessee shall be at any time seized in execution or attachment by any creditor of the Lessee or if the Lessee shall make any assignment for the benefit of creditors, or become bankrupt or insolvent or take the benefit of any Act now or hereafter in force for bankrupt or insolvent debtors or if the Lessee is a corporation and any order shall be made for the winding-up of the Lessee or other termination of its corporate existence then this Lease shall at the option of the Lessor, cease and determine and the term shall immediately become forfeit and void and if the Lessee pays rent in monthly installments, the then current month’s rent and the next ensuing three (3) months rent shall immediately become due and payable and the Lessor may re-enter and take possession of the Moorage Site as though the Lessee or other occupant or occupants of the Moorage Site were holding over after the expiration of the term without any right whatsoever.
9. NON-WAIVER
9.01
Non-waiver –The failure of the Lessor to insist strict performance of any covenant contained herein or to exercise any right hereunder shall not be construed or operate as a waiver or relinquishment for the future of any such covenant, or right, and no waiver shall be inferred from or implied by anything done or omitted by the Lessor save only an express waiver in writing. The acceptance of any rent or the performance of any obligation hereunder by a person other than the Lessee shall not be construed as an admission by the Lessor of any right or interest of such person as a sub-tenant, assignee, transerree or otherwise in the place and stead of the Lessee.
10. OVERHOLDING
10.01 Overholding – If the Lessee continues to occupy the Moorage Site after the expiration of the term granted hereby and the Lessor accepts rent, the new tenancy thereby created shall be deemed to be a monthly tenancy and shall be subject to the covenants and conditions including rent in this Lease insofar as the same are applicable to a tenancy from month to month, and there shall be no tacit renewal of the Moorage Lease or the term thereby granted.
11. ATTORNMENT
11.01
Attornment – the Lessee shall, in the event of any proceedings being brought for the foreclosure of, or in the event of exercise of the power of sale under any mortgage, charge, deed of trust or lien resulting from any other method of financing or refinancing made by the Lessor covering the VMM Harbour, attorn as tenant to the mortgagee, chargee, trustee, other encumbrancer or the purchaser as the Lessor hereunder.
12. NOTICES
12.01
Notices – Any notice or request required or contemplated by any provision hereof or which the Lessor or Lessee may desire to give to the other shall be sufficiently given by personal delivery or by registered letter, postage prepaid and mailed in one of the government’s post offices in the City of Vancouver, British Columbia and addressed to the party to whom such notice is to be given at the address of such party as given in this Lease or at such other address as either party may notify the other of in writing during the term hereof and any such notice shall be effective as of the day of such personal delivery or as of the second business day following the date of such posting as the case may be, provided that if there shall be at the time such notice is required a mail strike, slowdown or other labour dispute which might affect the delivery of such notice by mail, then such notice shall only be effective if actually delivered.
13. INTERPRETATION
13.01
General – This Moorage Lease and these Terms and Conditions and everything herein contained shall enure to the benefit of and be binding upon the heirs, executors, administrators, successors, assigns and other legal representatives, as the case may be, of each of the parties hereto, subject to the granting of consent by the Lessor as provided in Paragraph 4.06 to any assignment or sublease, and every reference herein to any party hereto shall include the heirs, executors, administrators, successors, assigns and other legal representatives of such party, and where there is more than one tenant or there is a female party or corporation, the provisions hereto shall be read with all grammatical changes thereby rendered necessary and all covenants shall be deemed joint and several.
13.02
Headings – The headings of the paragraphs and clauses of this Moorage Lease and these Terms and Conditions are for convenience only and shall not constitute a part thereof. The definition of any words used in any paragraph hereof shall apply to such words when used in any other paragraph hereof whenever the context is consistent.