Recitals
A. Snowburr Pty Ltd, trading as Margate Marina ( Margate Marina), is the operator of Margate Marina, 40 Marina Drive, Barretta Tas 7054 (Marina).
B. The licensee is the owner (Boat Owner) of the Yacht, Craft, Vessel or Boat & Trailer (Boat) as described above.
C. Margate Marina has agreed to grant a licence to the Boat Owner to occupy the Marina Berth described above (Berth) for the purposes of mooring the Boat upon the terms and conditions of this Licence Agreement.
D. Margate Marina has agreed to grant a licence to the Boat Owner to use the Marina for the purpose of storing, launching & retrieving the Boat upon the terms and conditions of this Licence and Facility Usage Agreement.
Terms and Conditions
1. Any reference in this Agreement to Margate Marina or the Boat Owner includes their directors, agents, authorised representatives, servants, contractors, employees and invitees.
2. Margate Marina grants the Boat Owner a licence to occupy the Berth for the purposes of mooring the Boat, provided that the occupancy shall be personal but exclusive to the Boat Owner for the term of the Licence.
3. The Boat Owner shall not assign or transfer the Licence.
4. Where a provision of this Agreement, or part thereof, purports to exclude, restrict or modify, any right or remedy implied by law and which is not by virtue of any provision of law capable of being excluded, restricted or modified by agreement, then such provision or part thereof shall not apply to the extent it is not as a result of the operation of law capable of so applying.
5. The Boat Owner agrees, acknowledges and declares that:
a. The Boat Owner has examined the Marina and its facilities and relies on his/her own judgment as to its suitability in accepting the use of the Marina.
b. The Boat Owner has not placed any reliance upon any statements or representations made by Margate Marina.
c. Margate Marina does not provide any warranty to the Boat Owner as to the condition of the Marina, its piers, jetties, wharfs, pontoons, storage facilities or other plant and equipment situated on or used in connection with the Marina.
d. The Boat Owner will be responsible for all damage to any structures, piles or any property whatsoever arising from any act, omission, neglect or default of the Boat Owner its servants or agents or other users of the Boat.
e. The Boat Owner releases to the full extent permitted by law Margate Marina from all claims, loss, damage and costs of every kind resulting from any damage or injury, including personal injury, howsoever arising in connection with the use of the Marina notwithstanding any negligence on behalf of Margate Marina.
f.The Boat Owner shall be solely liable for the care and protection of the Boat, its fittings, accessories and contents and for any loss or damage of any nature whatsoever to the Boat, its fittings accessories and contents. Margate Marina reserves the right to provide correct mooring lines for any Boat that is not using adequate or approved ropes, which will be charged to the Boat Owner.
g. Margate Marina may at its sole discretion move the Boat to any other mooring place at the risk and expense of the Boat Owner and Margate Marina shall not be liable for any damage to or loss or theft of the Boat, its fittings and accessories or any goods and effects occurring as a result of any such move.
6. On the termination of this Agreement, the Boat Owner shall remove the boat and all goods and effects of the Boat Owner from the Marina by the date of termination. The Boat Owner shall remain liable for payment of all outstanding licence fees or any sums due to Margate Marina whatsoever, including licence fees which accrue until the boat is removed.
7. If the Boat Owner does not remove the boat or all goods and effects of the Boat Owner by the date of termination, Margate Marina shall be entitled to move the boat and all goods and effects to any convenient place. The Boat Owner shall be liable for payment of all expenses and storage fees thereby incurred. The Boat Owner indemnifies and shall keep indemnified Margate Marina against all liability, fees and expenses incurred in respect of such removal or storage or any other matter arising.
8. In the event of any default under this Agreement, the Boat Owner:
a. hereby grants a lien to Margate Marina over the Boat and all its goods and effects pending the remedy of the default and payment of all expenses, fees and other liabilities incurred under this Agreement;
b. agrees that if the Boat Owner fails to pay any monies owing to Margate Marina under this Agreement, or remove the Boat and/or all goods and effect of the Boat Owner pursuant to clause 7, Margate Marina may, after 14 days written notice, treat the Boat Owner’s property as if the Boat Owner has abandoned its interest in the property and that the property had become the property of Margate Marina, and deal with the property in the manner that Margate Marina thinks fit; and
c. indemnifies Margate Marina for any loss, liability, cost or expense incurred in remedying a default by the Boat Owner, including but not limited to legal and debt recovery costs on an indemnity basis, and any loss, liability, cost or expense incurred by Margate Marina in exercising its rights under clauses 27(a) and 27(b) of this Agreement.
9. The Boat Owner shall comply with all Government laws, rules and regulations and in particular, safety regulations as laid down by MAST or other relevant Waterways Authority and all other relevant authorities. Vessels must be registered, identified, marked and equipped with particular attention to adequate fire fighting equipment.
10. The Boat Owner must obtain consent from Margate Marina before commissioning any tradesman to carry out any repairs on the Boat. All tradesmen must register with the Marina office and provide a copy of their Public Liability Insurance documents before they are allowed to enter the Marina.
11. Casual or temporary berthing may be available for visiting yachts and vessels. The Boat Owner must complete the appropriate form which may be obtained from the Marina office and pay the required fee for any overnight stays. In addition to complying with this Licence and Facility Usage Agreement, yacht and vessels using the temporary berthing facilities must be moored in accordance with the following terms:
a. the yacht or vessel must use substantial mooring lines and springers;
b. no yacht or vessel will be left overnight on the boat launching ramp areas without obtaining the consent of the Margate Marina first and completing the appropriate form, which may be obtained from the office of Margate Marina; and
c. Margate Marina has the authority to move any casual occupant to another berth or mooring.
12. Fees for casual or temporary berthing of up to 10 days are to be paid in full and in advance to occupying the allocated berth. If the period exceeds 10 days, then fees for casual or temporary berthing are to be paid weekly in advance.
13. The Boat Owner shall provide and maintain their own mooring lines to standards and specifications approved by the Marina. Margate Marina reserves the right to renew, replace or make good any mooring lines at the Boat Owner’s expense.
14. On the commencement of this Licence and Facility Agreement, The Boat Owner is required to:
a. pay a holding deposit of two times the monthly licence fee. The holding deposit will be held until the termination date of this Licence and Facility Use Agreement thereupon it shall be refunded after the keys and gate tags have been returned and after having deducted therefrom any monies owing from outstanding accounts by the Boat Owner to Margate Marina.
b. make payment monthly in advance by either a standing credit card authority or Direct Debit Request to Margate Marina’s nominated bank account.
15. The licence fee is based on the overall length of the Boat and the overall length includes davits, marlin boards and bowsprits.
16. The licence fee may be varied from time to time as Margate Marina determines, provided that Margate Marina gives the Boat Owner one month’s notice in writing of any intended variation to the licence fee.
17. The Boat Owner shall not:
a. jump to or from a vessel;
b. permanently live on board a vessel without the consent of Margate Marina;
c. modify the allocated berth in anyway including affixing anything to the marina structure without the written consent of Margate Marina;
d. moor lines to obstruct walkways or fairways;
e. store any sails, dinghies or equipment on the Marina without the consent of the Margate Marina;
f.do anything in or around the Marina that may be annoying, dangerous or offensive;
g. permit bilge or other contaminated water, effluent, fuel or oil to be discharged into the water within the boundaries of the Marina;
h. carry out or permit to be carried out work such as panting, welding, grinding, sanding or any other material repair to the vessel whilst it is on the berth or on the Marina grounds without the consent of Margate Marina.
i.use the berth for commercial purposes including sail training and yacht charter without first seeking the approval in writing from Margate Marina;
j.display or permit the display on berthed vessels any advertising or sponsorship material without the approval in writing from the Margate Marina.
k. hang laundry of any type or any item of a personal nature in public view aboard or on any vessel or any jetty;
l.consume alcohol on the Marina jetties, pontoons and walkways;
m. run, dive or swim within the Marina; and
n. clean hulls in the Marina area.
18. The Boat Owner must at all times ensure that:
a. all garbage is taken to the recycling bins and disposed of in the correct bin;
b. dogs are leashed at all times while in transit from Boat Owner’s vehicle to the Boat and must not be allowed to enter the Marina area or foul the Marina area and grounds;
c. LPG gas installations are turned off at the bottle;
d. battery systems are to be isolated at all times while the vessel is unattended;
e. water services provided at the Marina are used in a reasonable manner consistent with any prevailing legislation; and
f.all signs in the Marina and around the Margate Marina are obeyed by the Boat Owner and the Boat Owner’s servants, agents, guests and invitees.
19. Margate Marina shall be entitled to transfer, assign or novate this Agreement to any entity of its choosing.
20. Either party may terminate this Agreement, for any reason whatsoever, upon giving 1 month’s written notice of termination to the other party.
21. Indemnities
a. The Boat Owner hereby indemnifies and shall keep indemnified Margate Marina for all loss, liability or damage caused to Margate Marina, its servants or agents as a result of any breach by the Boat Owner its servants or agents of any of the terms covenants conditions or provisos on the Boat Owner’s part contained in this Agreement.
b. The Boat Owner releases to the full extent permitted by law Margate Marina and its servants and agents from all actions, suits, claims, demands, losses, damages, costs and expenses and other liabilities in respect of or arising from any loss or damage to the Boat or any loss or damage to the Boat Owner its servants agents guests or invitees including personal injury howsoever arising in connection with the use of the Marina notwithstanding that any such loss damage or injury may have occurred as a result of the negligence of Margate Marina or its servants or agents.
c. The Boat Owner hereby indemnifies and shall keep indemnified Margate Marina for all loss, liability or damage caused to Margate Marina its servants or agents as a result of any breach by the Boat Owner its servants or agents of any of the terms, covenants, conditions and provisos on the Boat Owner’s part contained in this Agreement or as a result of any negligent act or omission of the Boat Owner its servants or agents.
d. The Boat Owner shall at all times maintain proper and adequate insurance with a respectable responsible and solvent insurance company in respect of the Boat and in respect of its fittings accessories and contents. The Boat Owner shall also at all times take out and maintain an adequate public liability insurance in respect of the indemnities given by the Boat Owner as contained in this Agreement such insurance to be for an amount of not less than Ten million dollars ($10,000,000.00). The Boat Owner shall produce to Margate Marina if demanded from time to time Certificates of Currency of the Insurance Policies contemplated by this clause.
22. In this Agreement:
a. Collateral means The Boat.
b. Grantor means the Boat Owner in its own capacity and any capacity as trustee. Any reference to the Grantor includes its successors and assigns, and where more than one person, each of them jointly and severally.
c. Secured Party means Margate Marina and or its successors and assigns.
d. Security Interest has the same meaning given to it in the Personal Property Securities Act 2009 (Cth) (PPSA).
23. The Grantor acknowledges and grants a Security Interest in the Collateral to the Secured Party until such time that this Agreement terminates.
24. This Agreement is governed and construed in accordance with the law of the state of Tasmania and the parties submit to the jurisdiction of the Courts of the state of Tasmania in respect of all matters arising under or relating to this Agreement.
25. This Agreement can be signed in any number of counterparts, each of which is an original and all of which taken together, form one single document.
