MEMORANDUM

TO:

Thomas J. Bonfield City Manager December 3, 2007

DATE:

RE:

Bahia Mar Marina - Amended and Restated License Agreement

Attached and ready for your execution is the Amended and Restated License Agreement between the City and Marina Management Corp., d/b/a Bahia Mar Marina, relating to the use of the Pace Blvd. right-of-way by The Oar House Restaurant. This document has already been executed by the licensee. When I submitted the document to Marina Management's attorney for its execution, I requested a check for payment of the $50o annual license fee. There was no such check delivered with the agreement. You may wish to go ahead and execute the agreement and have your staff submit an invoice for the licensee fee to Marina Management or you may wish to contact Marina Management and ask it to send the license fee payment to the City before you execute the agreement. Either course of action would be a reasonable one. The original license agreement for this property was dated July 22, 2004. I presume that Marina Management has heretofore paid its annual license fee on or about the anniversary of the date of the original agreement. If so, Marina Management might take the position that it should pay only $300 until the next anniversary of the new agreement. Feel free to use your discretion in re Ivin kra 3natter.

JWF/jlm Enclosure

AMENDED AND RESTATED LICENSE AGREEMENT THIS AMENDED AND RESTATED LICENSE AGREEMENT, made and entered into this ZCWh day of Iy c ) , 2007, by and between the CITY OF PENSACOLA , a municipal corporation of the State of Florida, hereinafter referred to as the "City", and Marina Management Corp ., a Florida corporation d/b/a Bahia Mar Marina, whose address is 1901 West Cypress Street , Pensacola, Ff.., 32501 hereinafter referred to as "Licensee"; and WHEREAS, the City Council previously approved a license on the 22nd day of July, 2004 (the "Original License"); and WHEREAS, the parties wish to amend and restate the Original License in certain respects; WITNESSETH: FOR AND IN CONSIDERATION of the mutual benefits and obligations hereinafter set forth , to be kept and performed by the parties hereto, the City and Licensee agree as follows: 1. The Original License is hereby superceded and replaced by this Amended and Restated

License Agreement . City grants to Licensee a license to use that portion of the Pace Boulevard Tight-of-way now occupied and licensed under the Original License adjacent to the marina's property, including the island turnaround at the southern end of the improved portion of Pace Boulevard ( hereinafter called " subject right - of-way property ") for the purpose of permitting the marina to improve and utilize the subject right - of-way property which terminates at the Bayou Chico shoreline , with no inclusion of water rights adjacent to the right-of - way, with the following conditions : 1) That the public continue to have access to the improved right-of-way and to the Bayou Chico shoreline ; and 2 ) that the property is used only for recreational purposes, for the manner in which now used by Licensee , and other uses authorized herein. The

installation of improvements and landscaping is permitted, and may include the following: two (2) volleyball courts, horseshoe throwing areas and similar recreational activities picnic and dining tables, park benches, a wooden observation and dining deck in the proximity of the shoreline, a gravel parking lot, signage for the Oar 1-louse Restaurant, the construction of a semipermanent island style thatched roof or a "chickee" roof over the deck and over other unimproved portions of the property, temporary tents or wind stops, parking facilities, and other similar uses incident to the Oar House Restaurant. Dispensing, selling and/or consumption of alcoholic beverages, meals, and dining is specifically permitted subject to the provisions of Section 7 concerning insurance, Section 5 concerning indemnification, and other terms and conditions hereof. The Licensee is to erect public access signs indicating that the subject rightof-way property may be utilized by the public. Final plans for the proposed parking lot layout, site drainage, and modifications to the existing guardrail must be submitted to, and approved by the City. 2. Except as is currently in place or as is authorized hereunder, Licensee may not make any

additional improvements to the subject property unless expressly authorized by the City Council in writing. Licensee shall not permit any obstruction of the view of motorists on adjacent streets. 3. Commencing upon the date of this Agreement and until it is terminated, Licensee shall

pay an annual fee of $500.00 to the City. 4. Licensee shall take good care of the subject property and shall maintain the subject Unless otherwise provided elsewhere in this Agreement,

property in good order and repair.

Licensee shall, at his own expense, immediately restore the subject property to its original condition, reasonable wear and tear excepted, upon the termination of the license granted hereby.

5.

Licensee shall indemnify and hold harmless the City from any and all liability,

claims, demands, damages, expenses, fees, fines, penalties, expenses (including attorney's fees), suits, proceedings, actions or causes of action of every kind and nature whatsoever, arising out of or occurring in connection with the occupancy and/or use of subject property by Licensee, his successors, assigns, officers, employees, servants, agents, contractors, or invitees, of whatsoever description including negligence of the City, or resulting from any breach, default, nonperformance, or violation of any of Licensee's obligations under this Agreement. Licensee shall at his own expense defend any and all actions, suits, or proceedings which may be brought against the City or in which the City may be impleaded with others in any such action or proceeding arising out of the use or occupancy of the subject property. This paragraph shall survive the termination of this Agreement. 6. It is understood and agreed that Licensee accepts the subject property and the

ground under it in its present condition, and no representation as to any portion, part or section of said property is hereby made by the City; nor does the City warrant or represent that the property is safe or suitable for the purpose for which it is permitted to be used by Licensee. 7. Until the termination of this license is acknowledged in writing by the City,

Licensee agrees to purchase and maintain in full force and effect, liability insurance coverage, including contractual liability coverage on the subject property of the type and in the amount as determined by the City as reasonable. Initially, the limits of liability of such coverage shall be at least $1,000,000.00 combined single limits of liability per occurrence for bodily injury including death and property damage. The City will give Licensee at least ninety (90) days prior written notice of any increase i n the required limits of liability.

Licensee agrees to have in force, by the end of such ninety (90) day period, the newly required limits of liability. Prior to undertaking any activity upon the subject property, Licensee shall provide the City with a certificate of insurance, satisfactory to the City, evidencing the existence of such insurance. Required insurance shall be documented in the Certificates of Insurance which provide that the City of Pensacola shall be notified at least thirty (30) days in advance of cancellation, non-renewal or adverse change or restriction in coverage. The City of Pensacola shall be named on each Certificate as an Additional Insured and this License Agreement shall be listed. If required by the City, the Licensee shall furnish copies of the Licensee's insurance policies, forms, endorsements, jackets and other items forming a part of, or relating to such policies. Certificates shall be on the Certificate of Insurance" form equal to, as determined by the City an ACORD 25. Any wording in a Certificate which would make notification of cancellation, adverse change or restriction in coverage to the City an option shall be deleted or crossed out by the insurance carrier or the insurance carrier's agent or employee. The User shall replace any canceled, adversely changed, restricted or non-renewed policies with new policies acceptable to the City and shall file with the City Certificates of Insurance under the new policies prior to the effective date of such cancellation, adverse change or restriction. If any policy is not timely replaced, in a manner acceptable to the City, the Licensee shall, upon instructions of the City, cease all operations under this Agreement until directed by the City, in writing, to resume operations. The Certificate Holder shall be listed as follows: City of Pensacola, Risk Management, P. O. Box 12910, Pensacola, FL 32521-0063. This Agreement, and the license granted hereby , may be terminated by the City

8.

without cause and at its sole discretion, by giving ninety (90) days prior written notice to

Licensee. This license shall be for the sole use and benefit of Licensee. In the event that Licensee receives notice from the City of termination of this License Agreement, the City shall not be liable for any claim from Licensee, his legal representatives, successors or assigns arising out of the termination. Licensee may relinquish his interest in the subject property and may be relieved of its obligations under this Agreement by giving written notice of his intention to do so to the City, immediately removing any improvements placed by Licensee upon the subject property, and restoring the subject property to its original condition, reasonable wear and tear excepted. When the City has acknowledged in writing its satisfaction therewith, this Agreement shall be terminated, and the City and Licensee shall have no further obligation arising hereunder. Provided, however, Licensee shall in no event be excused from its obligations pursuant to paragraph 5 and 7 with respect to acts or occurrences prior to the termination of this Agreement. 9. Without the previous written consent of the City Council, Licensee shall not be

permitted to assign this Agreement or any estate or interest therein, sublet or permit the occupancy of the subject property, or any part thereof by anyone other than the Licensee. Licensor hereby consents to the assignment of this Agreement by Licensee to The Oar House on Bayou Chico, LLC, a Florida limited liability company. Any consent by the City to any act of assignment, subletting or occupancy shall be held to apply only to the specific transaction thereby authorized. Such consent shall not be construed as a waiver of the duty of the Licensee, or its legal representatives or assigns, to obtain from the City its consent to any other or subsequent assignment, subletting or occupancy or as modifying or limiting the rights of the City under the foregoing covenants by the Licensee not to assign or sublet without such consent. In any event, no such assignment, subletting or occupancy shall relieve the Licensee of

its obligations hereunder. 10. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida. IN WITNESS WHEREOF, this Agreement is executed by the authorized representatives of the City and Licensee on the day and year first written herein. CITY OF PENSACOLA, A municipal corporation

Thomas J. Bonfield, City Manager

STATE OF FLORIDA COUNTY OF ESCAMBIA

The foregoing instrument was acknowledged before me this

_r}._ day of

2007, by Thomas J. Bonfield , City Manager of the City of Pensacola, a municipal corporation of the state of Florida , on behalf of the corporation, who is personally known to me and did not take an oath. NOTARY PUB Signatures Print. My Commission Expires: i.t_r\.2 1 a9'Cl

4r"L\

LICENSEE,
MARINA MANAGEMENT CORP.

d/b/a Bahia W M

Witnesses:

i^Cli;
Print Name

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Print Name

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STATE OF FLORIDA COUNTY OF ESCAMBIA Before the subscriber personally appeared Leo Cyr, President Marina Management Corp., d/b/a Bahia Mar Marina, who is personally known to me or who has produced take an oath, and (who did/did not ) as identification and acknowledged and declared that he executed the said instrument for the use and purpose therein set forth. GIVEN UNDER my hand and official seal, this Z L of ^c J r , 2007.

..,t.-

MEREDITH WILKINSON

:- MY COMMISSION # DD 257821 ^ EXPIRES: February 10, 2008 bonded Thru Notary Public Underwriters

Notary Public - Print State of Florida at Large My Commission Expires: a. tQ oe

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MEMORANDUM

TO:

Thomas J. Bonfield, City Manager

FROM: DATE: SUBJECT:

Kevin A. Cowper, Community Development Director April 17, 2007 Bahia Mar

A letter was forward to Bahia Mar on August 22, 2006 outlining required actions to maintain the Oar House restaurant in a code compliant manner consistent with the terms of the License to Use (LTU ) Right-of-Way Agreement dated September 9, 2004. To date , the majority of required actions have not been taken . Following are the required actions outlined in the August 22, 2006 letter. Required Action: Bahia Mar representatives will submit a Site Plan that includes grading and drainage (one foot contours) detailing the layout of the parking lot, lighting, site access from Pace Boulevard, size of the individual parking stalls, and aisles of at least 20 feet in width. Action Taken: Site plan has been submitted.

Required Action: The grading and drainage plan will be submitted to determine the direction of the stormwater runoff in the vicinity of the volleyball courts and parking area. Bahia Mar will take appropriate measures to manage and treat stormwater from the parking lot to City standards and will provide appropriate narrative/calculations to reflect compliance by a Professional Engineer (Florida registered). The plan will reflect the proposed treatment facility (area). Action Taken: Stormwater plan has been submitted. No work performed to date.

Required Action: Standard parking stalls will be delineated (outlined) with buried timbers cut to the appropriate size and properly anchored. Action Taken: No delineation of parking stalls to date.

Required Action: The City Engineering Department will approve a driveway cut for the gravel parking area after the site plan has been submitted and approved.

The parking area will be one way in and one way out to facilitate access and smooth traffic flow. Action Taken : Driveway cuts approved but no construction to date.

Required Action : Bahia Mar will landscape the cul-de-sac island in the Pace Boulevard right of way with sod and palm trees. Irrigation will be provided. Pilings with rope will be installed on the island to protect the landscaping and prevent vehicle parking. Action Taken : Pilings with rope have been installed. Landscaping and irrigation have not been i nstalled.

Required Action : The City Public Works Department will provide a sketch to Bahia Mar illustrating parking spaces along the east side of the Pace Boulevard right of way between the southern end of Pace Boulevard and Cypress Street as well as travel lanes and no parking areas. Action Taken : Parking spaces striped along Pace Blvd. however , the striping was done with paint rather than thermoplastic material. Paint is very faint at this time and should be redone with thermoplastic material.

Required Action : Two handicap spaces, with a handicap accessible sidewalk apron will be provided as part of the new parking area located in the Pace Boulevard right of way. Action Taken : Handicap spaces delineated but handicap accessible sidewalk apron not constructed . In lieu of providing handicap spaces on Pace Blvd. staff has agreed to the delineation of an additional handicap space on site. Said handicap space must be properly delineated on a suitable hard surface ( concrete).

Required Action : Bahia Mar will stripe Pace Boulevard and install the handicap accessible sidewalk apron according to Public Works specifications. Parking spaces striped along Pace Blvd. Handicap spaces Action Taken : delineated but handicap accessible sidewalk apron not constructed . Alternative location for handicap space has been approved by staff but not constructed /delineated at this time. Striping was done with paint rather than thermoplastic material . Paint is very faint at this time and should be redone with thermoplastic material.