This License Agreement (this "License") is executed this _____day of ______, 2009 by and between the Town of Harwich, acting by and through its Board of Selectmen (hereinafter referred to as the "Town") and ___________, having an address of _______________, (the "Licensee").
Whereas, the Town has adopted a Harbor Management Plan (the “Plan”) the purpose of which is to promote the public safety; define proper harbor area uses; and, promote mariner awareness of all Town By-laws and Harwich Harbor Rules and Regulations; and,
Whereas, pursuant to the Plan, “Mooring Servicing Fields” have been created within Town of Harwich Harbor and said “Mooring Servicing Fields’ are to be assigned to a “Mooring Services Agent”; and
Whereas, pursuant to the Plan, a “Mooring Services Agent” must possesses adequate marine liability insurance as well as the equipment necessary to retrieve, inspect, repair, upgrade and replace individual moorings within an assigned “Mooring Services Field; and
Whereas, further pursuant to the Plan, the Town’s Harbormaster retains authority to manage all mooring activities, permits, inspections and fees even when a “Mooring Servicing Agent has primary responsibility and liability for the management of a “Mooring Servicing Field”; and,
Whereas the Licensee is an individual, corporation or other entity in the business of supplying, servicing and/or renting mooring hardware and other equipment in the Town for fresh and salt water boating use; and,
Whereas, the Licensee possesses the marine insurance, facilities, inventory, equipment and staffing specified in Section 3.12 of the Plan entitled “Mooring Servicing Agent Requirements,” which is attached hereto as Exhibit 1 and incorporated by reference herein; and
Whereas, the Town is willing to grant the Licensee access to the Town’s “Mooring Servicing Fields” in order to perform the mooring servicing activities required under the Plan as a Licensee. The Licensee shall perform such mooring servicing activities as an independent contractor, and is not an employee of the Town.
Now, therefore, the Town hereby grants by License to the Licensee the right to enter and use that Mooring Servicing Field designated herein as the “Premises” subject to the following terms and conditions.
A. The Premises to which this License shall apply shall be the _________________ _____________________Mooring Services Field as shown on the map in Attachment A
B. It is the intention of the Town to provide continuing access and use of the Premises to the Licensee. It is not anticipated that relocation of the Premises will be necessary during the term of this License. However, the Town expressly reserves the right to relocate the Premises as may be necessary to effectuate the purposes of the Plan. The Licensee agrees to make any such relocation within the time frame stated by the Town in a written notice designating the relocation of the Premises.
C. The Town shall consult with the Licensee in advance of any relocation of the Premises at least thirty (30) days prior to the proposed effective date of relocation, and shall provide written notice of the new location of the Premises at least ten (10) days in advance of the effective date of the relocation.
II. USE, PURPOSE, TERM
Entry and use of the Premises are limited as herein defined.
A. Entry upon and use of the Premises is specifically but not exclusively granted to the Licensee, its contractors, agents, representatives, employees, and invitees solely for the purposes of providing mooring services consistent with the Plan, and Licensee further acknowledges that no use shall be made of the Premises which will be unlawful, improper, offensive, or contrary to any law or any municipal by-law or regulation in force in the Town.
B. The Licensee shall have control over his/her mooring servicing operations during the term of this License. Licensee agrees, however, to comply with the directions of Town Harbormaster so as to assure that all of its mooring servicing operations are conducted safely and in manner consistent with the Plan.
C. The Licensee hereby covenants and agrees that during the term of this License it shall comply with all of the “Mooring Servicing Agents Requirements” set forth in Section 3.12 of the Plan, which has been attached hereto and incorporated by reference herein as Exhibit 1. The License further agrees that at all times it shall possess and maintain all of the implements, facilities, equipment, inventory and qualified staffing necessary to provide daily monitoring of its Mooring Servicing Field and perform any and all mooring related functions within said field twenty four (24) hours a day, seven (7) days a week, including but not limited to, repair and retrieval of lost tackle, storm preparation and emergency services. The Licensee further agrees that during the term of this License, it shall maintain the clerical capability necessary to process mooring applications, conduct inspections, and support the issuance of mooring stickers and tags in cooperation with the Town’s Harbormaster.
Licensee shall retain 100% of the revenues derived from mooring servicing it provides within the Premises.
Licensee acknowledges and agrees that it accepts the Premises in "as is" condition for the purpose of this License, and that the Town has made no representation or warranty regarding the Premises or any of its facilities for the purposes intended by the Licensee.
Such entry and use by the Licensee shall be exercised from the date of the execution of this License and shall continue through 12/31/11 subject to the Termination provisions set forth in Section VI below. On an annual basis the Town shall review the License to ensure that the Licensee is in performance of all of the obligations and covenants set forth in the License to the reasonable satisfaction of the Town. The provisions of Section V shall further limit such entry and use.
The consideration for this License shall be for the period May 1st through December 31st of the calendar year for a total annual fee of $200 paid to the Town no later than May 1st of each year. Licensee acknowledges that said License Fee shall be due and payable regardless of the revenues Licensee derives from the exercise of its rights under this License. Consideration shall also include the payment of all costs and expenses associated with the exercise of the rights granted hereunder not otherwise provided for herein, together with the observation and performance by the Licensee of all the obligations and covenants set forth within this License to the reasonable satisfaction of the Town.
IV. INDEMNIFICATION AND INSURANCE
The Licensee agrees to indemnify, defend and hold harmless the Town from and against any and all claims, demands, suits, actions, costs, judgments, whatsoever, including reasonable attorney's fees, which may be imposed upon, incurred by, or asserted against the Town by reason of (a) any failure on the part of the Licensee to comply with any covenant required to be performed or complied with by Licensee under this License, or (b) for the death, injury or property damage suffered by any person sustained or occurring on the Premises on account of or based upon the act, omission, fault, negligence or misconduct of the Licensee, or (c) for the death, injury or property damage suffered by any person sustained or occurring on land outside the Premises and related to the activities of the Licensee upon said Premises, or (d) for actions in trespass against the Town and/ or Licensee brought by a property owner abutting the Premises or any other person having any right, title or interest in the Premises locus.
The Licensee shall maintain general liability and marine insurance, including coverage for bodily injury, wrongful death and property damage, all in amounts reasonably acceptable to the Town and in an amount sufficient to support the obligations of the Licensee under the terms of this License and as stated in Exhibit 2, which is attached hereto and incorporated by reference herein. The Licensee will provide the Town with certificates of insurance, naming the Town as an additional insured, and evidencing that the Licensee's insurance is in force and that such insurance shall not be canceled or materially changed without giving the Town at least sixty (60) days written notice. Licensee shall maintain such insurance continually throughout the duration of this License and shall provide the Town with evidence of renewal of such coverage at least thirty days prior to the expiration of any current coverage.
During the exercise of the rights hereby granted, the Licensee shall at all times conduct itself so as not to unreasonably interfere with the Town's use of the Premises, and shall observe and obey directives of the Town and its duly designated representatives, as well as all other applicable laws, statutes, ordinances, regulations and permitting or licensing requirements. The Licensee shall notify the Town orally and in writing to the Town Administrator and the Town Harbormaster prior to entering the Premises to commence activities under this License and shall coordinate his / her use of the Premises on a daily basis with the Town Harbormaster. Nothing in this Agreement shall be construed as requiring the Town to maintain the Premises or any of its facilities in any manner or to supply or pay for any utilities other than as expressly provided herein.
The Mooring Service Agent must treat all customers with respect while performing the mooring service agent duties. How a Mooring Service Agent reacts with customers will be given major consideration in the decision of whether the mooring service agent will be reappointed.
VI. TERMINATION AND MODIFICATION
This License shall be revocable by either party upon written notice of revocation at least sixty (60) days prior to the termination date stated within said notice, except that the License shall be revocable by either party for violation of the terms of this License upon notice of revocation at least seven (7) days prior to the termination date stated within said notice for violation of the terms of this License. The Town may revoke this License upon such prior oral or written notice as is reasonable under the circumstances, in an emergency or if the Town discontinues the use of the licensed property as a municipal harbor, or if the Licensee fails to engage in the business of supplying, servicing and/or renting mooring hardware and other equipment in the Town for fresh and salt water boating use, or fails to maintain upon its business premises the implements, facilities, equipment, staffing or professional capacities required by Plan, or if the Licensee violates any regulation set forth in the Plan as currently enacted or as may from time to time be amended or any other regulation which shall govern the conduct of the Licensee, or if the Licensee at any time conducts its mooring servicing business in a manner considered by the Town, in its sole discretion, to be improper.
In the event that this License is terminated by revocation of either party pursuant to this section, then the Licensee, at its own expense, shall remove all its implements, facilities, apparatus, equipment and property from the Premises. This obligation shall survive the termination of this License.
VII. MODIFICATIONS and AMENDMENTS
Modifications or amendments to this License shall be in writing and duly executed by both parties hereto to be effective.
For purposes of this License, the parties shall be deemed duly notified in accordance with the terms and provisions hereof, if written notices are mailed to the following addresses:
Town: Harwich Town Hall, 732 Main Street, Sandwich, MA 02645, Attn: Town Administrator
These addresses are subject to change, and the parties hereto agree to inform each other of such change as soon as practicable.
IX. NO ESTATE CREATED
This License shall not be construed as creating or vesting in the Licensee any estate in the Premises, but only the limited right of use as hereinabove stated.
X. EXHIBITS and ATTACHMENTS
Any and all exhibits and attachments referenced herein or attached hereto are duly incorporated within this agreement.
IN WITNESS WHEREOF, the parties hereto have caused this License Agreement to be executed as a sealed instrument and signed in duplicate by their duly authorized representatives, on the date first indicated above.
TOWN OF HARWICH BOARD OF SELECTMEN
__________________ Date: ______________
_________________ Date: _____________