Mosquito Creek Dry Storage and Quick Lift Contract

DEFINITIONS:

• “Lift Facilities” means the vessel lifting and moving facilities of the Marina
• “Storage Bay” means a dry storage bay assigned to the Owner from time to time by the Marina
• “Storage Facilities” includes the dry storage yard and the valet storage yard
• “Vessel” means that certain property of the Owner described on page 1
• “High Season” means April 1 – September 30 of each year
• “Low Season” means October 1 – March 31 of each year

1.     LIFT FACILITIES

1.1       The Owner requests the Marina from time to time to use its Lift Facilities to lift the Vessel to or from the water, to move the Vessel to or from the Storage Bay or to otherwise to lift or move the Vessel as indicated by the Owner, from time to time.

1.2       The Owner herby acknowledges and agrees that the terms and conditions of this contract relating to use of Lift Services will apply to each and every use of the Lift Facilities in respect of the Vessel including without limiting the generality of the foregoing any use thereof in respect of the Vessel that may occur for any reason subsequent to termination or expiration of this Agreement.

1.3       The precise time of the use of the Lift Facilities to lift or move or otherwise in respect of the vessel, will entirely at the discretion of the Marina and the Marina will not be required to use the Lift Facilities in any circumstances that it considers dangerous or unsafe.

1.4       The Owner may, from time to time, on 48 hours’ notice to the dry storage office and based on availability, request the Marina to use the Lift Facilities, including prior to the execution of this Contract by the Owner to lift the Vessel to or from the water, to move the Vessel to or from the storage Facilities or to otherwise lift or move the Vessel as indicated by the Owner, from time to time.

1.5       If the Owner wishes to use the Lift Facilities, the Owner will:

(a)        pay the applicable fee;

(b)        bring their Vessel to the valet holding dock; and,

(c)        be present when the Vessel is taken out of the water.

(d)        The owner will pay fees to the Marina for the following:

(e)        the use of the Lift Facilities by the Marina for the purposes as requested from time to time by the Owner at the time of each use of the Lift Facilities to lift or move the Vessel at the current lift rates. This fee will apply to each and every lift performed by the Marina while Vessel is within the Dry Storage area;

(f)         all accounts are due immediately upon billing or other request by the Marina for payment. The Owner will pay interest on all overdue accounts 30 days past due at a rate of 2% (two percent) per month (24 percent per year) calculated from and including the due date. The Owner will pay to the marina on demand all losses, costs, and expenses of every nature incurred by the Marina in connection with collecting overdue accounts, including without limiting the generality of the foregoing all legal fees on a solicitor and his own client basis.

2.     DRY STORAGE

2.1       The Owner will be assigned a Storage Bay in the dry storage yard by the Mosquito Creek Marina LP. as the Mosquito Creek Marina LP. considers appropriate and the Mosquito Creek Marina LP. may, at any time and from time to time, at its own cost, rearrange the position or change the location of the Vessel without previous notice to the Owner at the sole risk of the Owner, and the Owner hereby appoints the Marina the Owner’s agent for that purpose.

2.2       If the Vessel has been stored in a Storage Bay:

(a)        during Low Season and the High Season date comes into effect, or;

(b)        during High Season and the Low Season date comes into effect, then the daily rate charge will be adjusted to the appropriate seasonal rate, plus all applicable surcharges required

2.3       Any vessel that will be in the dry storage area for more than 30 days is required to make full payment on their dry storage account no later than each 30-day period. Any customer staying less than 30 days will pay their dry storage balance in full when they move the vessel back to the water.

2.4       Although Owners using the Marina’s Storage Facilities, other than Annual Valet and Winter Valet customers, may conduct ship yard work on their Vessel in the Owner’s Storage Bay, all work will be carried out in accordance with the following:

(a)        every vessel must have an approved tarp under the vessel at all time;

(b)        all sanding must be done with dustless sanders;

(c)        no open sanding or grinding anywhere on a Storage Bay unless completely enclosed and approved by the dry storage office or lift operator;

(d)        the side of the Vessel must be skirted if performing any of the above;

(e)        spray painting and sand blasting are not permitted;

(f)         clean-up around the vessel must be done daily;

(g)        no debris of any kind is to be left on the ground;

(h)        must follow all Environment Canada Best Marina Practices Rules;

2.5       Owners are subject to fines from Environment Canada for not following the Environment Canada Best Marina Practices Rules and CMC Dry Storage policies;

2.6       Owners are also subject to an administrative charge of $50.00 per day for each infraction of the terms listed in (a) - (h) and the Marina will alert all necessary agencies if and when a spill occurs in the Marina basin. The Owner will bear sole responsibility for the adequacy of any blocking or bracing of the Vessel (whether performed by the Marina’s employee or agent or otherwise) and the Owner will from time to time, and in any event always after heavy winds, inspect such blocking and bracing and ensure the integrity and safety thereof.

2.7       The Owner agrees not to build or install any type of shed over or around his/her Vessel in the Storage Yard without the express written authorization from the Marina.

3.     NO LIVE ABOARDS

3.1       Except as authorized in writing herein no one may live aboard the Vessel or use the Vessel as a place of residence while the Vessel is at the Marina. No person will be permitted within the Storage Yard between the hours of 10:00 p.m. to 6:00 a.m. each day; Failure to comply with this regulation may be cause for termination of Storage Agreement.

4.     LIABILITY FOR INJURY AND DAMAGE

4.1       The Mosquito Creek Marina LP, the Council of the Squamish Nation, its members, the Squamish Nation, its members, Nch’kay Development Corporation, Her Majesty the Queen in Right of Canada, and their respective employees, agents, servants, successors, personal representatives and assigns will not be liable for personal injury to or death of the Owner or any other person on the premises of the Marina or on the Vessel with the express or implied consent of the Owner, or for loss of or damage to the property of the Owner or any other person, by theft or otherwise, whether such injury, death, loss or damage is caused by the negligence of the Marina, its servants or agents, or otherwise. (Whether or not arising in the circumstances of the Owner’s use of the Storage Facilities or the circumstances of the use of the Lift Facilities to lift or move or otherwise in respect of the Vessel, and whether or not such injury, death, damage or loss is caused in whole or in part by the negligence of the Squamish Nation or any of its members, employees or agents (including without limiting the generality of the foregoing any employee or agent of the operator.)

4.2       The Owner will indemnify and save harmless the Mosquito Creek Marina LP, Council of the Squamish Nation, its members, the Squamish Nation, its members, Nch’kay Development Corporation, Her Majesty the Queen in Right of Canada, and their respective employees, agents, servants, successors, personal representatives and assigns from and against all claims, demands, loss, costs, damages, actions, suits, or other property which arises in any way out of or is occasioned either wholly or partly by any occurrence or non-occurrence on the premises of the Marina or on the Vessel involving the Owner or any person on the premises of the Marina or the Vessel with the express or implied consent of the owner, including but without restriction of the generality of this sub-section, arising out of or occasioned wholly or in part by use of the Storage Facilities or the Storage Bay or the circumstances of the use of the Lift Facilities to lift or move or otherwise in respect of the Vessel, whether such claims, demands, losses, costs, damages, actions, suits or other proceedings are by or in respect of any of the Owner’s employees, agents, family, guests, or by any other Person at the Marina in connection with the Vessel, use of the Lift Facilities to lift or move or otherwise in respect of the Vessel, or the Owner’s use of the Storage Facilities or the Storage Bay.

4.3       The Owner will be liable for and will pay to the Mosquito Creek Marina LP immediately upon demand the amount of all costs and expenses incurred by the Mosquito Creek Marina LP in making good any loss, damage or destruction of or to property if the Squamish Nation or any of its members, employees or agents (including without limiting the generality of the foregoing property of the Mosquito Creek Marina LP, its employees or agents), Nch’kay Development Corporation, or any other person whosoever caused in whole or in part by the owner or any of the Owner’s employees, agents, family or guests or by any other person at the Mosquito Creek Marina LP in connection with the Vessel, use of the Lift Facilities to lift or move or otherwise in respect of the Vessel.

4.4       Notwithstanding the liability of any other person, the Owner will be liable to the Mosquito Creek Marina LP for all damage to, loss or destruction of property of the Mosquito Creek Marina LP. caused by the Vessel whether the Vessel was at the time of such damage, loss or destruction under the care or control of the Owner or any person with the express or implied consent of the Owner, and the Owner will pay to the Mosquito Creek Marina LP the cost of repairing or replacing the damage, lost or destroyed property within thirty (30) days of receiving a written account from the Mosquito Creek Marina LP.

5.     RULES & POLICIES

5.1.        The Owner and all person on the premises of the Marina or on the Vessel with the express or implied consent of the Owner will obey the rules (the “Rules”) set by the Mosquito Creek Marina LP as set out in the schedule of rules attached to this Agreement. The Rules may be amended from time to time by the Marina and all such amendments shall be posted in the Marina and deemed to be part of this Agreement.

5.2.        The owner must abide by all yard policies as posted or otherwise communicated as deemed in effect from time to time. Any damage resulting from any breach of yard policy and or Rules is deemed the responsibility of the Owner.

6.     GENERAL

6.1.        The Mosquito Creek Marina LP will have a possessory and a charging lien upon the Vessel for all amounts which are or become owing to the Mosquito Creek Marina LP by the owner under this Contract or otherwise, and to realize any such amounts the Mosquito Creek Marina LP may, upon 30 days’ notice to the Owner, in any manner sell or absolutely dispose of the Vessel, and the Owner hereby appoints the Mosquito Creek Marina LP as its attorney to do all things and sign all documents necessary for such sale and disposition. The Mosquito Creek Marina LP will be entitled to deduct from the proceeds of any such sale, in addition to any other amounts then owing by the owner to the Mosquito Creek Marina LP, (all costs and expenses of every nature whatsoever incurred by the Mosquito Creek Marina LP in connection with such sale in addition to any other amounts then owing by the Owner to the Mosquito Creek Marina LP, all with obtaining a declaration in any court regarding the rights of the marina under this section or the validity of a sale or proposed sale of the Vessel pursuant to this section), and in the event that such costs and expenses are incurred by the Mosquito Creek Marina LP in connection with such uncompleted sale. This agreement will be construed to be a contract for storage, and the provisions of the Warehouseman’s Lien Act and amendments thereto shall apply to this Agreement. By signing above, you hereby allow us to perform a credit check.

6.2.        The Mosquito Creek Marina LP will not be responsible for the security of the Vessel or any motor vehicle at the Marina from theft or other loss and will not be liable for the loss by theft or otherwise of any equipment, machinery or other personal property attached to or left in, on or about the Vessel or attached to or left in, on or about any motor vehicle at the Marina.

6.3.        When used in this Contract the word “Owner” means the person who executed this Contract as “owner” regardless of whether that person actually owns the Vessel, the word “person” includes any individual, firm, partnership, association or corporation.

6.4.        The failure of the Mosquito Creek Marina LP to insist upon strict performance of any term or condition of this Contract or to exercise any right or option hereunder shall not be construed as a waiver or relinquishment for the future of any such term, condition, right or option.

RULES:

A.           The vessel will be clearly marked with its name and registration number as required by law.

B.           The Owner and the Owner’s employees, agents, family and guests and every other Person at the marina in connection with the Vessel, use of the Lift Facilities to lift or move or otherwise in respect of the Vessel, or the owner’s use of the Storage Facilities will comply with all the Rules and regulation at any time posted immediately adjacent to the entrance to the Marina offices.

C.           The Owner will comply with, and will do all things necessary to ensure that the Owner’s employees, agents, family, and guests and every other Person at the marina in connection with the Vessel, use of the Lift facilities to lift or move or otherwise in respect of the Vessel, of the Storage Facilities and Storage Bay are familiarized with and at all-time comply with the following rules and regulations (each of which the owner hereby acknowledges and agrees constitutes a term of this Contract) namely:

a.    Every Person using any of the Marina’s facilities or coming onto the marina premises does so at their own risk and neither the Squamish Nation nor any of its employees, agents or members (including without limiting the generality of the foregoing any employee or agent of the Mosquito Creek Marina LP) or the Council of the Squamish Indian Band or any of its members or any other Person in respect of whose acts or omissions the Squamish Indian Band may at law or in equity be held liable, will be responsible for any personal injury, death or damage to property, howsoever caused to or sustained by any such person.

b.    Every Person at the Marina will conduct themselves in a manner that does not jeopardize the safety or disturb the enjoyment of others.

c.     No inflammable liquids, oil rags, etc. will be kept or stored on the marina premises (including without limitation the generality of the foregoing on the Vessel while it is at the marina premises). The Owner is solely responsible for properly disposing of any toxic waste material (i.e. Gas, oil, contaminants, etc.) Anyone found dumping waste material in to Mosquito Creek., the ground, or the Burrard Inlet will be reported immediately to Environment Canada.

d.    No litter or debris will be left on the Marina premises, except that refuse may be placed in the containers provided for that purpose.

e.    Off-site contractors who do not carry third party liability a minimum of $5,000,000 will be prohibited. As a tenant of the Mosquito Creek Marina LP. you are responsible to ensure that such insurance is in force.

f.     No dogs are allowed within the marina premises unless they are on leash.

g.    There is an 8 km/hr. speed limit throughout the Marina Facilities. All machinery has the right of way.

h.    No storage of any material or other possessions will be permitted beneath or around your Vessel while it’s in the Storage Yard.

D.   Prior to the commencement of this Contract and at all times during the term, the Owner shall carry in full force and effect, with insurance companies authorized to business in the province of British Columbia, comprehensive general liability and property damage insurance with limits of at least $1,000,000 per occurrence (or such greater amount as the Marina may require as a prudent marina owner and operator). The insurance shall cover personal injuries, damage done to the storage bay, and any other Vessels or equipment in the vicinity of the Marina. The Owner shall not be entitled to store (or continue to store) the Vessel in the storage bay until and unless evidence of insurance is satisfactory to the Marina has been provided by the Owner and remains in effect at all material times.