“”Licensed Premises” or “Premises” shall mean the areas of the Dyckman Marina reserved for a full-service restaurant and a lounge as designated on Exhibit A, attached hereto…”
– From part 2.1(j) of the restaurant License Agreement
When property owners write a lease or a license agreement for a business to occupy space on their land, they always draw up something to indicate the exact area that is part of the agreement and discuss what uses are allowed to take place within that area. The area where the tenant or licensee can operate is often called the “Premises”. The agreements for the Dyckman Marina concession are no different. According to the part 1.1 of the License Agreement for the Restaurant:
Parks hereby grants to Licensee and Licensee hereby accepts from Parks this License to construct, operate, maintain and manage the Licensed Premises, as hereinafter defined, as a seasonal, full service restaurant and lounge in accordance with the provisions herein and to the satisfaction of the Commissioner of Parks (“Commissioner”).
The term “Licensed Premises” is then defined in part 2.1(j):
“Licensed Premises” or “Premises” shall mean the areas of the Dyckman Marina reserved for a full-service restaurant and a lounge as designated on Exhibit A, attached hereto, and shall include the structures, as well as any improvement, constructed thereon, including, without limitation, all buildings or structures, walkways, curbs, trees and landscaping.
Parks hereby grants to Licensee and Licensee hereby accepts from Parks this License to renovate, operate, maintain and manage the Licensed Premises (as hereinafter defined), as a full-service marina for the use and enjoyment of the general public with mooring, docking, and launch facilities and with ancillary facilities, which may include boat storage, hauling, vessel repair, boat service and maintenance, boat and equipment sales and rental, services for boaters (such as, without limitation, laundry facilities, showers and restrooms), a ship store, staging for sightseeing tours, and a sailing school in accordance with the provisions herein and to the satisfaction of the Commissioner of Parks (“Commissioner”).
Similarly, part 2.1(j) of the Marina agreement also defines its “Licensed Premises” as:
“Licensed Premises” or “Premises” shall mean the areas of the Dyckman Marina so denoted and described in Exhibit A, attached hereto, and shall include the structures, as well as any improvements, constructed thereon, including, without limitation, all buildings or structures, walkways, curbs, trees and landscaping but shall not include the areas reserved for the restaurant and lounge which are being separately licensed to Licensee. The “Licensed Premises” or “Premises” also includes the area designated as “Small Craft Launch Site” on Exhibit A.
All of the above is very normal. It seems that there were very clear definitions and boundaries established for separating the land which was to be used for the restaurant/lounge functions from the land which was to be used for the marina functions. What is not normal is how these Premises boundaries were then completely ignored and abused in the actual construction and operation of the facility.
Comparing the Premises boundaries to the as-built and as-operated conditions, it appears that:
- The valet parking lot is completely outside the legal boundaries of either the Marina or Restaurant premises. The valet parking already has many issues, but it would be a serious breach of the city charter if a business were allowed to operate on parkland without a concession agreement.
- Half of the restaurant building is sitting in the Marina premises and not the Restaurant premises. This was no doubt a result of an early redesign of the restaurant when a sewer in the area required a reconfiguration. But it does not change the fact that a restaurant use is taking place in the wrong area where no such use is allowed
- The south outdoor bottle-service lounge lies entirely in the Marina premises. Since no such use is allowed on this site, should this patio (the site of the July 2014 shooting) even exist?
- The beach concert zone seems to extend north of the licensed premises for the restaurant (which, as per the original intent, was supposed to have been a cafe and not a concert site).
- The marina functions are supposed to be “for the use and enjoyment of the general public” but the mooring and docks lie behind a barrier that is controlling access into this part of the Marina premises during concerts. (It should be noted also that the bulk of the Marina premises, being within the La Marina gates, lie behind an ID check and bag search whether the concert access barrier is up or not.)
Respecting the premises boundaries is part of the core of any real estate agreement. If the premises boundaries have been willfully ignored for three years, what does that say about the rest of the contract? It’s not as if Parks is unaware of the many problems at Dyckman Marina; that some of these problematic uses are not even taking place within the defined premises adds another layer of bewilderment and disappointment over the mismanagement of the concession by the Parks Department.