98-810Council File # � p - 8��
ORlGINAL
Presented By
Referred to
Committee: Date
1 WHEREAS, Riverboats Inc. desires to operate a passenger vessel
2 service on navigable waters and to make the vessels available for
3 hire by the public for trips, cruises, charters, dining,
4 entertainment and food and beverage services, and agrees to
5 locate and operate from a portion of Watergate Marina, located in
6 Saint Pau1 and owned and operated by the City of Saint Paul, and;
7 WHEREAS, the City recognizes that this operation would provide a
8 benefit to the public by expanding opportunities for enjoyment of
9 the Mississippi River and the City of Saint Paul�s river front
10 environment, and;
11
12
13
14
15
16
WAEREAS, the entering into this agreement is part of settling the
law suit filed by Riverboats Inc, against the City and Robert P.
Piram, Superintendent of Parks and Recreation.
NO THEREFORE BE IT RESOLVED, that the proper City officials and
staff are hereby directed and authorized to enter into the
attached lease agreement with Riverboats Inc.
Yeas Nays Absent
8enanav �
BZakey_ �
Bostrom � � f
Xarris '!
Col eman �
Lantry_ �
Rezter
� � �
Adopted by Council: Date �
Adoption Certified by Council Secretary
By
�C'��'S',
�
RESOLUTit?N
CI'fY OF SAINT PAUL, MINNESOTA
Green Sheet # tp a�t 3�
as
aequested by:
' ision of Par s and e ation �
By . �+--�._
`�
Form Approved by city Attorney
By: � �-.'i-Y,-'����
r Mayor
e �
:�
to
_ ....,.�crv ilOFflCE/COUNCII
Parks and Recreation
COWTACT PERSON ANp PHONE
�ATE INRIATED
July 30, 7998
Vic Wittgenstein (226-6409) q ��� p
HUMeEPFDq�
MUST BE Ofi COUNCIL AGENDA BY I�Aip aOtrtING
OfiDEH
ASAP
TOTAL J OF SIGNANNE PAGES � (CLIP ALL LOCA710NS FOH SIONANflE)
ACiION fiEQUESTED:
a�-810
GREEN SHEET � 5� NO. 62731
INfTiAUDATE INITIAVDATE
� OEPnRTMENT OIRECTOR �I CT' fAUNC1L
Z CRY A7TORNEY _CfiY CtERK
_FINANCiaL SERVICES OIR,
3 MAVOR (OR ASSISTANA 5 Parks & Recreation
Signatures of the Superintendent of Parks and Recreation, City Attorney, and Mayor and passage of the attached
Council Resolution by the City Council.
AECOMMENDATIONS: Appruve {A) ot Rejsct (FI
_PLANNIN6 LOMMISSION __CIVIL SEflvICE COMMISSIDN
_C16 CoMM1Ti'EE _
A srAr-� _
__OISTRICTCOUNGiI __
SUPPDqTS WHICH COUNdL O&lECTIVE?
INRIATING PpO61.EM. ISSUE, OPPORTUNRY iH'ho, LVhat. When. YVhere, YVhy�:
PERSON0.l SERVICE CANiRACTS MUST ANSWER THE WLIOWING QUESTIONS:
L Has thrs personitirm ever worketl untler a cmttact for [his tlepartment?
Y£5 NO
2. Has this persoNfirm ever 6een e ciry empbyee?
YES NO
3. Does th�s persoNfirtn possess a sWll nat normalry possessetl by any current ciry em0�oyee?
YE$ NO
Explain all yas answaes on saparate 5heet and attach to grean aheet.
Riverboats Inc. desires to operate a passenger vessel service out of Watergate Marina. This activity can add to the
recreational use of the river by the public.
��'�NEf�
\�VANTAGE5IF APPflOVED:
� 3 199�
Adds an etement to the City`s recreation arena. ei�j ,
is part ot the settlement of the law suit between Riverboats Inc. and the C�y���Q�`
YDVANTAGES IF APPROVEO:
ne
✓ANTAGES IF NOT APPROVED:
aw suit against the City wili go forward.
Counc°s3 Researcti Cen+er
� � � "�
ADUNTOFTRANSACTION S �L.�JOO - F
+ouece Wateroate Marina
COST/REVENUE BUUGEfED ICtliCLE ONEI YES NO
acrrvrtv Hnme�t � 23160
INFDflMAT1ON: �EXPLAIN) Riverboats Inc. shall pay the City SZ,500 annually or 5°h of its gross revenues derived trom
t passenqers in 1998-2Q00 and 5% of its gross revenue from all sources in 2001 & 2002.
�t � '`��°
0
This agreement is made and executed on this day of
, 1998, by and between River Boats Inc., a corporation
organized and existing under the laws of the State of Minnesota,
having its principal office at 495 Kenny Rd., St. Paul, MN 55101
(hereafter River Boats), and the City of Saint Paul, a municipal
corporation (hereafter the City).
ARTICLE I
RECZTALS
WHEREAS, River Boats desires to operate a passenger vessel service
on navigable waters and ta make the vessels available for hire by
the public for trips, cruises, charters, dininq, entertainment and
food and beverage services, and agrees to locate and operate from
a portion of Watergate Marina, located in St. Paul and owned and
operated by the City of St. Paul, and;
wHEREAS, the City recognizes that this operation would provide a
benefit to the public by expanding opportunities for enjoyment of
the Mississippi River and the City of Saint Paul's riverfront
environment.
NOA, THEREFORE, in consideration of the promises and mutual
covenants herein contained, it is agreed as follows:
ARTFCLE II
DESCRZPTION OF PREMISES
II.1. City shall permit River Boats, for the limited purpose
more fully described in Article V, and here generally described as
the conducting a passenger vessel service, upon that certain area
of the land and harbor space, located at Watergate Marina, situated
in the City of St. Paul, County of Ramsey, State of Minnesota, as
that certain area is more particularly described in Exhibit A,
attached hereto and made a part of this agreement by incorporation.
Z2.2. As used in this agreement, the term "premises" shall
refer to the real property as we11 as the areas used, traversed or
occupied by River Boats upon the waters within the Lower Harbor of
Watergate Marina, all as more particularly described in Exhibit A.
IZ.3. It is the intent of the parties that River Boats locate
at and operate fr��m the Northwe_;tern most portion of the Lower
Harbor, as that area is more part�cularly described in Exhihit A.
However, to that end, the City agrees to make its best effort to
promptly dredge that location, at its expense, to make the location
suitable for River Boats' operation. Should the location, by the
agreement of both parties, be otherwise unsuitable, the City will
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allow River Boats to relocate to another location adjacent to the
western bank inside the Lower Harbor, provided that such relocation
can be accomplished without impeding other marina traffic. Any
such relocation of River Boats' operation shall be made at River
Boats' expense unless River Boats has already completed extension
of services to the Northwestern portion of the Lower Harbor and
otherwise put in all ramps, docks, and vandaZ liqhts at that
location. If River Boats has already completed extension of
services to the Northwestern portion of the Lower Harbor and
otherwise put in all ramps, docks, and vandal lights at that
location, the relocatian expenses shall be borne by the City.
ARTICLE IZI
TERM OF AGREEMENT
IZI.1. The term of this agreement shall be for five (5) years,
commencing on May 1, 1998, or when the agreement is authorized and
executed in accordance with the provisions of the City of 5aint
Paul Administrative Code, Chapter 86, whichever last occurs, and
ending on October 31, 2002; unless earlier terminated in the manner
provided for in this agreement.
III.2. This agreement shall not be construed as providing,
either explicitly or implicitly, for any right to renewal or at-
will tenancy, upan the expiration of its term or upon termination.
However, if there has been no uncured breaah of this agreement, for
which the City has given written notice or if the agreement has not
been terminated due to a breach, the City shall provide River Boats
with an option to renew the Agreement for another four-year term,
at rates to be negotiated, at Watergate Marina or another location
suitable to River Boats if Watergate Marina will no longer be used
for commercial Passenger Vessel Services.
III.3. River Boats has no right to enter, locate at, operate
from, remain or possess the premises prior to or after the term of
this agreement, or its termination. River Boats shall vacate the
premises thirty (30) days following termination of the agreement or
thirty (30) days following the end of the term on october 31, 2002,
whichever occurs first. Should River Boats fail to vacate the
premises in the time provided for in this agreement, the City shall
be entitled to reasonable liquidated damages in an amount of
$150.00 per day, which sum is believed to be a fair pre-estimate of
such damages and is agreed between the parties to be a fair amount,
reasonable in the light of the anticipated harm whiah could be
caused by the breach, the difficulty of proof of lo'ss, and the
inconvenience or non-feasibility of otherwise obtaining an adequate
remedy.
ART�CLE IQ
PAYMENTS
ID.1. In consideration for the use of the Premises by River
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Boats under this Agreement, River Boats agrees to pay the City the
following sums:
A. Base Payment: River Boats agrees to deliver, without
prior demand, to the Manager of Special Services, Parks &
Recreation Division o£ Saint Paul, at 300 City Hall Annex, 25 W.
4th Street, St. Paul, M13 55102, or such other address as the City
may from time to time designate in writing, a base payment of Two
Thousand Five Hundred Dollars ($2,500.00), in lawful money of the
United States, per year. The first year's base payment shall be
delivered to the City upon final execution of this agreement. Each
year's base payment thereafter shall be delivered to the City in
two equal installments of $1,250 on July 1 and October l of each
year.
8, Percentage Payment:
1. During the first three years of this agreement
(1498, 1999, 2000) River Boats agrees to pay the City five percent
(5%j per annum, of its gross proceeds derived from the lease,
rental, license, charter or other use of its vessels for the
carrying of passengers. This percentage payment shall be
appliaable to all uses of River Boats' vessels for the carrying of
passengers which either originate or terminate at watergate Marina
or any other park, parkway, landing, public space, open space, or
other public property, owned and operated by the City of St. Paul,
per annum. This five percent (5%) per annum payment shall be due
and payable only to the extent that it exceeds the Base Payment of
Two Thousand Five Hundred Dollars ($2,500.00), per annum. The
amount of the Percentage Payment shall be the difference between
the Base Payment and the five percent (5°s} of River Boats' gross
proceeds derived from the lease, rental, license, charter, or other
use of its vessels for the carrying of passengers only, per annum.
Payments shall be made to the City no later than February 15th of
the year following the year in which the gross proceeds were
generated. (For example, all percentage payments due for the
calender year 1998 are due no later than February 15th, 1999.)
Payment shall be made in the manner provided for in Article IV. A.
1., of this agreement. Should the agreement be terminated prior to
the end of the term, the City shall be entitled to the five percent
(50) per annum payment on all proceeds generated up to the date
when River Boats vacates the Premises. Any such payment shall be
due and payable no later than thirty (30) days following River
Boats.vacation of the premises.
2. During the last two years oE this agreement (2001,
2002) , River Boats agrees to pay the �.ity five perce�nt (5%) per
annum, of its qross proceeds derived from all sourcES. "Gross
proceeds derived from all sources" means the agqregate dollar
amount received from any and all sales, leases, rentals, or other
services by River Boats from activities arisinq out of this
agreement, whether such sales, leases, rentals, or services be
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evidenced by check, credit, charge aocount, exchange, or otherwise,
and shall include, but not be limited to, the amounts received from
the sale, lease or rental of services, qoods, wares, merchandise,
beverages, food, or entertainment. "Gross proceeds derived from
all sources" shall also be construed to include all proceeds
derived from the lease, rental, license, charter, or other use vf
River Boats' vessels for the carrying of passengers. This
percentage payment shall be applicable to all uses of River Boats'
vessels which either originate or terminate at Watergate Marina or
any other park, parkway, landing, public space, open space, or
other public property which is owned and operated by the City oP
St. Paul, per annum. This five percent (5�) per annum payment
shall be due and payable only to the extent that it exceeds the
Base Payment of Two Thousand Five Hundred Dollars ($2,500�, per
annum. The amount of the Percentage Payment in years four and five
of this agreement shall be the differenae between the Base Payment
and the five percent (5°s) of River Boats "gross proceeds derived
from all sources". Payments shall be made to the City prior to the
last day of the year in which the "gross proceeds derived from all
sources" were generated. Payment shall be made in the manner
provided for in Article TV. A. 1., of this agreement. Should the
aqreement be terminated prior to the end of the term, the City
shall be enkitled to the five percent (5%) per annum payment on
"gross proceeds derived from all sources" generated up to the date
when River Boats vacates the Premises. Any such payment shall be
due and payable no later than thirty (30} days following River
Boats vacation of the premises.
3. Excluded Business Activities: Nothing contained in
Article IV. shall require River Boats to pay the City a Percentage
Payment for revenue generated Prom (a) vessels not covered in this
agreement; (b) vessels which are not moored at Watergate Marina and
do not operate from Watergate Marina; or (c) vessels covered by
this agreement which are removed from Watergate Marina and no
longer operate or moor at locations owned or operated by the City.
C. Records: River Boats shall keep at the premises, or at
495 Kenny Road, St. Paul, Minnesota, a permanent accurate set of
books and records of all sales, leases, rentals, arid charters, and
all transactions producing revenue derived from any business
conducted by River Boats or arising from the use of the base of
operations or vessels during each day of the term of this aqreement
which are subject to the percentage payment, and all supporting
documents, including cash register ribbons, sales slips, sales
checks, state sales and use tax reports, and business and:
occupation tax reports. All such pertinent records shall be kept,
retained, and preserved for at least three (3) years after the
ex�iration of each fiscal year or until the completion of any
litiqation �in which they are relevant, whichever is later. A11
such records shall be open to inspection by the City and its
agents, upon reasonable notice at all reasonable times during River
Boats ordinary business hours. River Boats_shall also be required
to keep records of disposal of sewage or other waste stored or
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produced on its vessels, appurtenant structures andjor "the
premises", as defined in Article II.2..
D. Audit: The acceptance by the City of payments of Base
Payments and Percentage Payments shall be without prejudice to the
City's riqht to an examination of River Boats books and records of
its transactions at the premises, 495 Kenny Road, or other
locations, in order to verify the amount of Percentage Payments
received by the City. The City may, at any reasonable time during
River Boats business hours, cause a complete audit to be made of
River Boats entire business affairs and records relating to its
business which arises out of its operations under this agreement
during the years of this agreement's Term, by a reputable licensed
accountant of the City's choice, at the City's cost. If such audit
discloses an overpayment of five percent (5%) or more by River
Boats to the City, the City shall refund the overpayment within
thirty (30) days of written demand. If such audit discloses an
error of five percent (50) or more in River Boats Percentage
Payment to the City as required by IV.A.5, of this agreement, (i)
River Boats shall pay the City the resultinq deficiency in the
Percentage payment as well as the cost of said audit, all within
thirty (30) days, and (ii) in addition, the City may, at its
option, terminate this Agreement on fifteen (15) days written
notice to River Boats.
E. Periodic Statements: River Boats sha11, no later than
February 15 of the year following the year in which the gross
proceeds were generated, deliver to the City a written statement of
all transactions which are subject to this ac3reement, occurring
during the fiscal year. (For example, the report due for the
calendar year 1998 is due no later than February 15, 1999.) This
Periodic Statement sha11 be prepared in accordance with generally
accepted accountinq principles consistently applied or other method
approved by the City's Chief Accountant, and satisfactory to
accurately account for all revenues which are subject to the
Percentage Fayment. This Periodic Statement shall be delivered,
whether or not a Percentage Payment is due and payable.
F. Rate Approval: Sixty (60) days prior to River Boats
commencement of operations during each year of the term it shall
deliver to the City a copy of all fees and charges that it intends
to make in conjunction with it operations. The City shall have the
right to approve such fees and charges before River Boats
implements them. For'the first year of this agreement the sixty
(60) day requirement is not applicable and River Boats agrees to
promptly deliver its rates upon execution of this agreement.
ARTICLE V
PERMITTED IISE
_ V.1. Generally: The premises may be used by River Boats only as
a base of operations and point of departure and/or return for
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passengers utilizing its vessels for cruises, charters, dining,
entertainment, and food and beverage services. River Boats sha11
not use or occupy the premises for any business or purpose other
than those set forth explicitly in this agreement. River Boats
shall not occupy any land at Watergate Marina, nor shall it make
any land based improvements or erect any structures, except for
those explicitly provided for in this agreement, or those permitted
in writinq by the City. River Boats shall not store any materials
of any kind on any land at Watergate Marina without the written
permission of the Watergate Marina Manager.
A. Base of Operations: River Boats may employ a loading
barge (hereinafter Barge) which is currently at the premises, as a
base of operations for its business at Watergate Marina. The Barge
shall be moored within the Lower Harbor in a location more
specifically described in Exhibit A. The Barge shall be utilized
as the embarkation point for passengers coming aboard or
disembarking from River Boats vessels. No other loading or
unloading point shall be allowed, unless necessary to load or
unload handicapped gassengers or unless first approved by the
Watergate Marina Manager. The Barge may also be utilized for
administrative purposes and for storaqe of supplies and material
secandary to River Boats operations at Watergate Marina. No other
use of the Barge shall be allowed. No service of any food or
beverages shall be made on the Barge. River Boats shall be entitled
to replace the Barge with another vessel of the same or smaller
size, upon written approval of the City, which approval sha11 not
be unreasonably denied. If River Boats decides not to use the
Barge as a base of operations, it may locate the Magnolia Blossom
at the same location and use it as both a base of operations and
passenger vessel.
B. Vessels: River Boats shall be allowed to operate ohly
those two vessels which are specifically identified and named the
"Magnolia Blossom" and "Maggie". River Boats shall not utilize or
allow any other vessels to operate from or pick up or drop off
passengers at the premises or its base of operations at Watergate
Marina. River Boats shall be entitled to replace either vessel
with another vessel of the same or smaller size, upon approval of
the City, which approval shall not be unreasonably denied. Any
replacement vessel shall be of the same general kind and quality
with similar passenger capacities and other accommodations and
offering the same manner of passenger transportation. In no event
shall River Boats be allowed to operate more than two (2) vessels.
Furthermore, any replacement of vessels shall not be allowed unless
and until this agreement is amended to reflect such repiacement.
The vessel "Magnolia Blos�aos." is to be moored on the west bank of
the Lower Harbor, immediat�ly behind the Barge, as that location is
more specifically delineated in Attachment A. The "Maggie" is to
be moored at a slip in Watergate Marina at no additional charge.
Alternatively, with the written permission of the City, the Maggie
may moor immediately behind the Magnolia Blossom. �
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C. Hours of ogeration: River Boats shall be allowed to
operate its business at Watergate only during the times from
sunrise to Midnight, on any particular day.
D. Parking: The City shall provide 50 parking spaces which
spaces may be used by River Boats customers and by other members of
the public. Parking shall be provided in the lot adjacent to the
Watergate Administration Building. The use of these parking spaces
by River Boats customers is not exclusive. To the extent that the
lot may be legitimately occupied by other vehicles owned by park or
marina users, River Boats customers shall be allowed to park along
the shore at the north end of the Lower Harbor. River Boats'
employees shall be permitted to park no more than five (5) of their
own vehicles and support vehicles at the north end of the Lower
Harbor as well. These locations are more specifically delineated
in Attachment A, and specifically incorporated herein. All River
Boats parking shall be done in an orderly manner and under the
general direction of the Manaqer of Watergate Marina. Parking for
River Boats customers shall be allowed only during River Boats
Aours of Operation. No parking for River Boats' customers or
employees shall be allowed on the peninsula located between the two
harbors or along the east shore of the Lower Harbor at Watergate
Marina without first obtaining written permission from the
Watergate Marina Manager. However, River Boats may temporarily
park no more than two (2) support vehicles at those locations, if
necessary to service its operations. In no event, may any support
vehicles be left at those locations overnight without first
obtaining the written permission of the Watergate Marina Manager.
E. Compliance with Law:
1. River Boats shall use and occupy the premises solely
for the purposes described in this agreement and will not use or
occupy the Premises for any unlawful purpose.
2. River Boats agrees to comply with all duly enacted
laws, ordinances, regulations and orders of all g4vernmental units
having jurisdiction over the Premises and its vessels and base of
operations.
3. River Boat specifically agrees to comply with and
observe a11 laws, ordinances, rules and regulations of the City,
State and federal government pertaining to discrimination in
employment, housing, education, and public accommodations on
grounds of race, color, creed, national origin or ancestry.
A. River Boats shall provide worker's compensation �
insurance for employees during the term of this agreement, if
required. A current certificate of insurance or an exemption
certificate, if required, shall be furnished to the City prior to
commencement of oparations.
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5. River Boats shall comply with all rules and
regulations established hy the U.S. Coast Guard governing craft on
navigable waters, and shall provide the City with a copy of the
USCG Certificate of Inspection of the vessels prior to any
commencement of River Boats ogerations. These Certificates shall
be maintained, updated and renewed as required by the U.S. Coast
Guard and River Boats shall provide the City with any updates or
renewals, in a timely fashion.
6. River Boats sha11 not cause or permit any
unreasonable noise, vibrations, odors or nuisance in or about the
premises or on its vessels or Barge which interferes with the quiet
enjoyment of the Marina or the navigable waters by slip lessees or
other lawful visitors or users. Zt is recognized that River Boats
will be offering entertainment, including musical bands, on its
vessels. However, no such entertainment sha11 be allowed within
Waterqate Harbor or upon the barge or base of operations, if the
Watergate Marina Manager determines that it is interfering with the
quiet enjoyment of the Marina by others.
7. River Boats shall, prior to operation, secure all
required permits and licenses pertaining to the sale or furnishing
of intoxicating liquors, beer, food, cigarettes, and any other
items River Boats intends to sell or of£er to its customers. River
Boats will further comply with any applicable licensing provisions
including, but not limited to, access for inspection and record
keeping.
F. Day to Day Operations:
1. River Boats shall maintain its vessels, base of
operations,barge, and any and all docks, ganq-planks, or other
methods of egress and ingress to its vessels and base of operations
in a well-kept, clean, sanitary, safe, lawful and comfortable
condition.
2. River Boats wi11, at a11 times, make its passenger
boat services available to the qeneral public.
3. River Boats will not allow its passenqers to leave
the vessels, barqe or the base of operations with any beverages or
food purchased from River Boats. It is recognized that passengers
f'or some charters may provide their own food and beverages and, in
those instances, the passengers may leave with those items.
4. River Boats will not hawk, peddle, or sell any
merchandise from Watergate Marii�a land. ` Souvenirs or other
merchandise may be sold from the vessels.
5. With respect to refuse or rubbish generated by or
resulting out of River Baats' operations, River Boats will use its
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best efforts to maintain the land around the base of operations and
paths or common courses of exit and entry from parking areas to the
base of operations in a clean and sanitary condition, and free from
refuse or rubbish which accumulates on its vessels, base of
operations, land around the base of operations, or which otherwise
is generated or results from River Boats' operations.
6. River Boats shall be responsible for providing for
and paying the costs related to the collection and disposition of
any trash or refuse that accumulates on its vessels, base of
operations, land around the base of operations, or is otherwise
generated or results from River Boats' operations.
7. River Boats shall not install, use, generate, store
or dispose of in or about the premises or any waters of the State
of Minnesota any hazardous substance, toxic chemical, pollutant,
waste material, or other material regulated by the Comprehensive
Environmental Response, Compansation and Liability Act of 1985 or
the Minnesota Environmental Response and Liability Act or any other
similar law or regulation, including without limitation any
material containinq asbestos or PCB, excepting normal waste that is
lawfully contained in the septic systems of the vessels and base of
operations, or normal bilge.
8. River Boats shall take all necessary precautivns and
exercise such supervision as may be necessary to ensure the safety
of passenqers, visitors, employees, and all others while on the
vessels, base of operations, during boarding and disembarking and
ta and from passenger's parking locations.
9. River Boats shall be responsible for securing any
necessary construction permits, archeological surveys, U.S. Coast
Guard, Minnesota Dept. of 23atural Resources or U.S. Army Corps of
Engineers permits or licenses, and any needed State or Local
licenses, permits or authorizations.
10. River Boats shall be responsible for any and all
applicable taxes, levies or assessments which may be assessed
against its operations.
11. River Boats shall be responsible for all day to day
operating expenses of the operation.
12. The City shall maintain the areas bf Watergate
Marina used for parking of River Boats' customers in a well-kept,
clean, sanitary, safe and lawful condition.
G. z�ignage:
1. River Boats may post and maintain signs, at its own
expense, at three locations: (i)up to two (2) signs at the entrance
to Hidden Falls/Crosby Farm Park at the intersection of Shepard
Road and Crosby Farm Road; (ii) at the entrance to Watergate
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Marina as it leads ofP of Crosby Farm Road; and (iii) at the shore
line abutting the premises and visible from the parking location.
2. All proposed signage sha11 first be approved by the
City, as to size, content, and location, and must be approved by
the Minnesota Department of Transportation if necessary and
otherwise comply with all applicable federal, state, municipal and
local statutes, laws, ordinances and regulations. A11 progosed
signage shall comply with the requirements £ound in the Minnesota
Manual on Uniform Traffic Control Devices, Part II-I, §2I-a through
2I-7. The City agrees to provide specifications to River Boats to
assist it in complying with this provision within 15 days of the
execution of this agreement.
ARTICLE VI
INDEMNIFICATION
VI.1. River Boats aqrees to indemnify, defend, save and hald
harmless the City of St. Paul and any agents, officers and
employees thereof from any loss, injury, death, ar damages to
persons or property and all claims, demands, actions or causes of
action of whatsoever nature or character which may be suffered or
sustained by any person, or other legal entity who may at any time
be using, occupying, visiting or otherwise present on River Boats'
vessels, base of operations, or the premises, if the loss, injury,
death, or damages shall be caused by or in any way result from or
arise out af any act, omission, or negliqence of River Boats, its
owners, operators, employees, agents, or any visitors, passengers,
customers or any other person or legal entity present on the
premises, vessels, or base of operations.
VI.2. Furthermore, River Boats agrees to hold the City harmless
and indemnify it for any and all charges, penalties, or assessments
imposed for any violation of any laws, ordinances, or regulations
arising out of actions or omissions of River Boats or its agents,
operatars, or employees.
ARTICLE VII
LIABILITY COVERAGE
VII.1. In orde.r to honor its duty to indemnify the City, River
Boats shall provide, at its own expense, a general liability
insurance policy from an insurance carrier licensed to do business
in Minnesota in which the City shall be named a�� an additio��al
insured, which policy shall cover the entire term of this agreemeiit
and any edditional time during which River Boats may be located at
or operating from City property, and shall cover injury to persons
or property arising out of the operations or activities of River
Boats in amounts of not less than Three Hundred Thousand Dollars
l0
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($300,000.00) where the claim is one for injury or death by
wrongful act or omission and Seven Hundred and Fifty Thousand
Dollars ($?50, 000.00) for any number of claims arising out oP a
single occurrence. If the maximum liability is modifiad by the
legislature, River Boats shall be required to provide coverage
adequate to cover up to the limits of the City's maximum liability.
VZI.2. To the extent that River Boats intends and desires to be
held privately responsible for claims up to Two Hundred Thousand
Dollars ($200,000.00), River Boats sha11 be allowed to self-insure
up to this amount, provided first that it maintains a general
liability golicy for claims sxceeding this amount up to the limits
addressed above and, further, that it maintains at all times a
certificate of deposit or treasury savings account as collateral in
the amount of self-insurance it decides to self insure itself for.
River Boats shall at all times guarantee and maintain the
certificate of deposit or treasury savings account in the full
amount of self-insurance provided pursuant to this agreement for
the purpose of satisfying any judgment against the City. Prior to
this agreement becoming effective, River Boats shall execute a
written agreement with a federally insured Bank or other financial
institution, lawfully doing business in the State of Minnesota, and
issuing the certifiaate of deposit or treasury savings account,
which requires the bank to notify, in writinq, the City of St. Paul
through its Manager of Special Services, Parks & Recreation
Divisian of St. Paul, at 300 City Hall Annex, 25 W. 4th Street, St.
Paul, MN 55162, not less than thirty (30) days before the
certificate of deposit or treasury savings account is transferred,
encumbered, posted as collateral for any other debt or obligation,
gifted, devised, or otherwise compromised. However, if there are
pending claims against the City, the agreement, shall provide that
there is to be no such transfer or other compromise of the
Certificate of Degosit or treasury savings account without first
obtaining the City's express written consent. Any transfer or
compromise of the Certificate of Deposit or treasury savings
account, without the City of St. Paul's express written consent,
will automatically work an immediate termination of this agreement.
River Boats shall exclusively be entitled to any interest earned on
said certificate of deposit or treasury savings account.
Concomitant with the duty to indemnify, River Boats also aqrees ta
apply the funds held as self-insurance to any claimant who secures
a judgment against River Boats or the City arising out of any claim
for damages in connection with River Boats operations, subject to
the terms of the obligation to indemnify. Furthermore, River Boats
expressly agrees to cooperate fully with the City in investigating
any and all claims for damages brought by the City or third
partie:.�. To this end, River 3oats agreas to provide the City with
any and all documents relating to any claims including, without
limitation, insurance forms, written reports, records of repairs or
damages, any and a12 statement of witnesses, photographs, drawings
or other related visual or audio recordings or depictions. River
Boats shall also make available its officers, employees and agents
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for oral interviews or depositions and shall timely comply with all
discovery requests.
ARTICLE V2II
ASSIGNMENT
VIII.1. River Boats shall not assign, transfer, sublet, pledge,
mortqage or otherwise transfer rights and responsibilities
(hereinafter referred to as an "assignment"), delegated to it under
this agreement to any third party; nor shall any assignment of the
rights and responsibilities designated to River Boats under this
agreement be effectuated by operation of law or otherwise, without
in each such case obtaining the prior written consent of the City,
which consent shall not be denied unless the City makes a good
faith fletermination that the proposed assignee lacks sufficient
financing or experience to assume ar maintain a passengar vessel
operation, has a felony criminal conviction in the past ten {10)
years, or otherwise has a history of past business practices or
experiences indicating unsuccessful ventures or poor business
practices or business judgment.
vIII.2. If River Boats desires to make an assignment, it shall
first notify the City of its desire to do so and shall submit in
writing to the City (i) the name of the proposed assignee, (ii) the
nature of the proposed assignee's business, (iii) a copy oP the
proposed assignment agreement and any other agreements to be
entered into concurrently with such assignment, including full
disclosure of all financial terms, and (iv) such financial
infarmation as the City may reasonably request concerning the
proposed Assignee. River Boats shall pay the City a reasonable fee
for the City's expenses, including attorneys' fees, in reviewing
such proposed assignment and in reviewing the proposed assignee's
financial ability to assume the agreement, said fee not to exceed
$500.00.
VIII.3. If, at any time during the term of this agreement, there
shall occur any change in the identity of any of the persons,
including Harry Euqene Cassidy, (excepting his immediate family),
presently having power to participate in or control the day to day
operations of the corporation River Boats, or any other change in
the corporate structure of River Boats, or the transfer or
alteration in the method of control or decision making regarding
River Boats, such change or alteration shall be deemed to be an
assignment. Any such change shall wo'rk an immediate termination of
this agreement unless such change is tirst approved by the City in
the manner provided above for other assignments.
ARTICLE IR
IMPRODEMENTS
Z%.1. River Boats shall be responsible for all costs incurred
in establishing and maintaining services to its operation,
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including site preparations and improvements and the establishment
or extension of any necessary water and electrical services from
existinq locations. Any proposed improvements shall first be
approved by the City. Site improvements shall be limited to those
necessary to qain access to the base of operations and vessels via
stairs, ramp, dock andJor gangplank. River Boats shall be entitled
to install no more than two vandal lights, without prior written
consent of the City. The kind and quality of said lights sha11 be
first approved by the Manager of Watergate Marina and s/he may
refuse any lights which s/he reasonably believes would interfere
with the enjoyment of other slip lessees. The City will permit
River Boats to obtain water from Waterqate Marina via the use of
hoses for the vessels and base of operations.
IB.2. All site improvements and extension or establishment of
services shall comply with all applicable federal, state, county
and local laws, regulation, ordinances or other lawful requirements
or limitations. Al1 improvements and extensions shall be done in
an orderly and workmanlike manner and shall not materially alter
the appearance of or limit access to Watergate Marina. River Boats
shall be required, at the City's option, to remove any and all
improvements upon termination.
I%.3. River Boats shall bear the cost and shall fully and
promptly pay Por all gas, heat, light, power, telephone service,
and other public utilities of every kind furnished to the premises,
with the exception of water used via hoses, throughout the term of
this agreement.
IX.4. Should the City expand Watergate Marina or alter its
configuration so as to displace River Soats' location of operations
the City shall bear all costs in relocating, including the
extension of necessary services to River Boats within Watergate
Marina at a location acceptable to both parties.
ARTICLE X
TERMINATION
R.1. If either party shall fail or neglect to observe, keep,
or perform any of the terms, conditions, requirements or
obligations contained in this agreement on its part to be observed,
kept or performed, and the default shall continue for a period of
thirty (30) days following delivery of written notice specifically
describing the alleged default and a demand that it be cured, then
the party not in dafault shall have the right at its option, on
written notice, delivered to the defaulting party, to terminate
this agreemsnt, effective�immediately. If eithEr party fails or
neglects to observe, keep or perform any of the tarms, conditions,
requirements or obligations contained in the aqreement on its part
to be observed, kept or performed, on two (2) or more separate
occasions, then the party not in default shall have the right, at _
its option, on written notice, delivered to the defaulting party,
13
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to terminate this agreement, effective immediately, regardless of
whether or not either or both of the breaches have been cured.
x.2. Upon termination of the agreement, in the manner provided
in Article X.1, River Boats shall vacate the premises within sixty
(60) days. If River Boats fails to timely vacate, the City may,
without further notice to River Boats, have the right immediately
to enter and take possession of the premises with or without
process of law and to remove all of River Boats property and
improvements from the premises and all persons occupying the
premises and to use all necessary force therefor and in all
respects to take the actual, full, and exclusive possession of the
premises without incurring any liability to River Boats due to
repossession. Zn furtherance of any repossession, the City may
have the base of operations, barge, and vessels removed £rom the
premises. Furthermore, the City shall be entitled to Percentage
Payments accrued up to the date of repossession. If it is later
determined by a court of competent jurisdiction that there was no
basis for termination resulting in the exercise of the City's
rights under this paragraph than the City will be responsible for
damages resulting from any repossession, as provided for by law.
5.3. With the exception of removable docks and improvements to
vessels, upon termination of this agreement the City shall become
the owner of any and all improvements made to the premises and
River Boats is prohibited from removing or destroying any such
improvements.
%.4. Termination of this agreement, in the method provided
for, shall not operate as a bar to any other lawful action or
process available to either party.
X.S. The City, at its expense, shall promptly remove any
navigational obstructions such as cable, pipes, stumps and other
debris along the West shore of the harbor, which interfere with the
navigation or mooring of River Boats' vessels in the harbor.
%.6. The City shall be responsible for designating the
original and any subsequent placements and locations of the River
Boat's vessels and base of operations. River Boats shall bear the
cost of the original placement and location, subject to Article
I2.3, above.
ARTICLE XI
ADDITIONAL PROVISIONS �
%I.1. waiver: A waiver by either party of any breach of this
agreem��nt is not a waiver of any other or subsequent breach of this
agreement.
XI.3. Attorneys' Fees: In the event that any action is filed
in relation to this agreement, the_unsuccessful party in the action
sha11 pay to the successful party, in addition to all the sums that
14
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either garty may be caZied on to pay, a reasonable sum for the
success£ul party's attorney fees. This provision does not apply to
legal fees for outside counsel who represent the City.
%2.4. Entire Agzeement: This agreement constitutes the entire
aqreement between the parties. No representatians, warranties,
undertakings, or promises, whether oral, implied, written, or
otherwise, have been made by either party hereto to the other
unless expressly stated in this agreement or unless reduced to an
amendment executed in the fashion provided for below.
SI.S. Amendments: Any amendments or modifications to this
agreement shall be in writing, shall be attached to and made a part
of this agreement, and sha11, if necessary, be first approved, as
to form, by the St. Paul City Attorney's Office and executed by the
same parties who executed the original agreement, or their
authorized representatives.
%I.6. No Partnership, Joint Venture, or Fiduciary Relationship
Created Hereby: Nothing contained in this agreement shall be
interpreted as creating a partnership, jaint venture, or
relationship of prinaipal and aqent between the City and River
Boats. River Boats is prohibited from expressing or implying any
suah relationship or using any City of St. Paul logos in any
advertisements, brochures or other medium.
%I.7. severable Provisions: Each provision, section, sentence,
clause, phrase, and word of this agreement is intended to be
severable. If any provision, section, sentence, clause, phrase,
and word hereof is illegal or invalid for any reason whatsoever,
such illegality or invalidity shall not affect the legality or
validity of the remainder of this agreement.
XI.B. Eminent Domain: If the premises or any part thereof, or
any abutting property resulting in lack of access to the premises,
are taken by virtue of eminent domain, this agreement shall
terminate on the date title vests pursuant to the taking. Nothing
herein sha11 in any way abrogate River Boats' rights with respect
to eminent domain, including the right to just compensation, if
any, in the event of a taking.
%I.9. Captions: All captions, headings, or titles in the
articles, paragraphs or sections of this agreement are inserted for
convenience of reference only and shall not constitute a part of
this agreement as a limitation of the scope of the particular
paragraphs or sections to which they apply.
� �
%I.10. Force Majeure: This aqreement shall automaticaZly
terminate upon any act of God, civil riot or disturbance, war, or
natural ealamity which renders the premises or either party
incapable of performing their obligations under this agreement. If
the Force Majeure event is temporary in nature, such event shall
15
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act to suspend, rather than terminate performance.
IN WITNESS WHEREOF, the parties hereto have signed this
agreement the day and year first above written.
APPROVED AS TO FORM:
Assistant City Attorney
River Boats Inc.
B . ri�.2t�tG ,
ITS • ` �
CITY OF SAII3T PAUL
Mayor, City of St. Paul
Director, Finahce & Management
Services
City Clerk
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APPRCIX. LOCATId�
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OATS 1NC. L�.AS� :�XHlt�i i H
6/2/98 B. Tourtefotte
Council File # � p - 8��
ORlGINAL
Presented By
Referred to
Committee: Date
1 WHEREAS, Riverboats Inc. desires to operate a passenger vessel
2 service on navigable waters and to make the vessels available for
3 hire by the public for trips, cruises, charters, dining,
4 entertainment and food and beverage services, and agrees to
5 locate and operate from a portion of Watergate Marina, located in
6 Saint Pau1 and owned and operated by the City of Saint Paul, and;
7 WHEREAS, the City recognizes that this operation would provide a
8 benefit to the public by expanding opportunities for enjoyment of
9 the Mississippi River and the City of Saint Paul�s river front
10 environment, and;
11
12
13
14
15
16
WAEREAS, the entering into this agreement is part of settling the
law suit filed by Riverboats Inc, against the City and Robert P.
Piram, Superintendent of Parks and Recreation.
NO THEREFORE BE IT RESOLVED, that the proper City officials and
staff are hereby directed and authorized to enter into the
attached lease agreement with Riverboats Inc.
Yeas Nays Absent
8enanav �
BZakey_ �
Bostrom � � f
Xarris '!
Col eman �
Lantry_ �
Rezter
� � �
Adopted by Council: Date �
Adoption Certified by Council Secretary
By
�C'��'S',
�
RESOLUTit?N
CI'fY OF SAINT PAUL, MINNESOTA
Green Sheet # tp a�t 3�
as
aequested by:
' ision of Par s and e ation �
By . �+--�._
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Form Approved by city Attorney
By: � �-.'i-Y,-'����
r Mayor
e �
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to
_ ....,.�crv ilOFflCE/COUNCII
Parks and Recreation
COWTACT PERSON ANp PHONE
�ATE INRIATED
July 30, 7998
Vic Wittgenstein (226-6409) q ��� p
HUMeEPFDq�
MUST BE Ofi COUNCIL AGENDA BY I�Aip aOtrtING
OfiDEH
ASAP
TOTAL J OF SIGNANNE PAGES � (CLIP ALL LOCA710NS FOH SIONANflE)
ACiION fiEQUESTED:
a�-810
GREEN SHEET � 5� NO. 62731
INfTiAUDATE INITIAVDATE
� OEPnRTMENT OIRECTOR �I CT' fAUNC1L
Z CRY A7TORNEY _CfiY CtERK
_FINANCiaL SERVICES OIR,
3 MAVOR (OR ASSISTANA 5 Parks & Recreation
Signatures of the Superintendent of Parks and Recreation, City Attorney, and Mayor and passage of the attached
Council Resolution by the City Council.
AECOMMENDATIONS: Appruve {A) ot Rejsct (FI
_PLANNIN6 LOMMISSION __CIVIL SEflvICE COMMISSIDN
_C16 CoMM1Ti'EE _
A srAr-� _
__OISTRICTCOUNGiI __
SUPPDqTS WHICH COUNdL O&lECTIVE?
INRIATING PpO61.EM. ISSUE, OPPORTUNRY iH'ho, LVhat. When. YVhere, YVhy�:
PERSON0.l SERVICE CANiRACTS MUST ANSWER THE WLIOWING QUESTIONS:
L Has thrs personitirm ever worketl untler a cmttact for [his tlepartment?
Y£5 NO
2. Has this persoNfirm ever 6een e ciry empbyee?
YES NO
3. Does th�s persoNfirtn possess a sWll nat normalry possessetl by any current ciry em0�oyee?
YE$ NO
Explain all yas answaes on saparate 5heet and attach to grean aheet.
Riverboats Inc. desires to operate a passenger vessel service out of Watergate Marina. This activity can add to the
recreational use of the river by the public.
��'�NEf�
\�VANTAGE5IF APPflOVED:
� 3 199�
Adds an etement to the City`s recreation arena. ei�j ,
is part ot the settlement of the law suit between Riverboats Inc. and the C�y���Q�`
YDVANTAGES IF APPROVEO:
ne
✓ANTAGES IF NOT APPROVED:
aw suit against the City wili go forward.
Counc°s3 Researcti Cen+er
� � � "�
ADUNTOFTRANSACTION S �L.�JOO - F
+ouece Wateroate Marina
COST/REVENUE BUUGEfED ICtliCLE ONEI YES NO
acrrvrtv Hnme�t � 23160
INFDflMAT1ON: �EXPLAIN) Riverboats Inc. shall pay the City SZ,500 annually or 5°h of its gross revenues derived trom
t passenqers in 1998-2Q00 and 5% of its gross revenue from all sources in 2001 & 2002.
�t � '`��°
0
This agreement is made and executed on this day of
, 1998, by and between River Boats Inc., a corporation
organized and existing under the laws of the State of Minnesota,
having its principal office at 495 Kenny Rd., St. Paul, MN 55101
(hereafter River Boats), and the City of Saint Paul, a municipal
corporation (hereafter the City).
ARTICLE I
RECZTALS
WHEREAS, River Boats desires to operate a passenger vessel service
on navigable waters and ta make the vessels available for hire by
the public for trips, cruises, charters, dininq, entertainment and
food and beverage services, and agrees to locate and operate from
a portion of Watergate Marina, located in St. Paul and owned and
operated by the City of St. Paul, and;
wHEREAS, the City recognizes that this operation would provide a
benefit to the public by expanding opportunities for enjoyment of
the Mississippi River and the City of Saint Paul's riverfront
environment.
NOA, THEREFORE, in consideration of the promises and mutual
covenants herein contained, it is agreed as follows:
ARTFCLE II
DESCRZPTION OF PREMISES
II.1. City shall permit River Boats, for the limited purpose
more fully described in Article V, and here generally described as
the conducting a passenger vessel service, upon that certain area
of the land and harbor space, located at Watergate Marina, situated
in the City of St. Paul, County of Ramsey, State of Minnesota, as
that certain area is more particularly described in Exhibit A,
attached hereto and made a part of this agreement by incorporation.
Z2.2. As used in this agreement, the term "premises" shall
refer to the real property as we11 as the areas used, traversed or
occupied by River Boats upon the waters within the Lower Harbor of
Watergate Marina, all as more particularly described in Exhibit A.
IZ.3. It is the intent of the parties that River Boats locate
at and operate fr��m the Northwe_;tern most portion of the Lower
Harbor, as that area is more part�cularly described in Exhihit A.
However, to that end, the City agrees to make its best effort to
promptly dredge that location, at its expense, to make the location
suitable for River Boats' operation. Should the location, by the
agreement of both parties, be otherwise unsuitable, the City will
1
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allow River Boats to relocate to another location adjacent to the
western bank inside the Lower Harbor, provided that such relocation
can be accomplished without impeding other marina traffic. Any
such relocation of River Boats' operation shall be made at River
Boats' expense unless River Boats has already completed extension
of services to the Northwestern portion of the Lower Harbor and
otherwise put in all ramps, docks, and vandaZ liqhts at that
location. If River Boats has already completed extension of
services to the Northwestern portion of the Lower Harbor and
otherwise put in all ramps, docks, and vandal lights at that
location, the relocatian expenses shall be borne by the City.
ARTICLE IZI
TERM OF AGREEMENT
IZI.1. The term of this agreement shall be for five (5) years,
commencing on May 1, 1998, or when the agreement is authorized and
executed in accordance with the provisions of the City of 5aint
Paul Administrative Code, Chapter 86, whichever last occurs, and
ending on October 31, 2002; unless earlier terminated in the manner
provided for in this agreement.
III.2. This agreement shall not be construed as providing,
either explicitly or implicitly, for any right to renewal or at-
will tenancy, upan the expiration of its term or upon termination.
However, if there has been no uncured breaah of this agreement, for
which the City has given written notice or if the agreement has not
been terminated due to a breach, the City shall provide River Boats
with an option to renew the Agreement for another four-year term,
at rates to be negotiated, at Watergate Marina or another location
suitable to River Boats if Watergate Marina will no longer be used
for commercial Passenger Vessel Services.
III.3. River Boats has no right to enter, locate at, operate
from, remain or possess the premises prior to or after the term of
this agreement, or its termination. River Boats shall vacate the
premises thirty (30) days following termination of the agreement or
thirty (30) days following the end of the term on october 31, 2002,
whichever occurs first. Should River Boats fail to vacate the
premises in the time provided for in this agreement, the City shall
be entitled to reasonable liquidated damages in an amount of
$150.00 per day, which sum is believed to be a fair pre-estimate of
such damages and is agreed between the parties to be a fair amount,
reasonable in the light of the anticipated harm whiah could be
caused by the breach, the difficulty of proof of lo'ss, and the
inconvenience or non-feasibility of otherwise obtaining an adequate
remedy.
ART�CLE IQ
PAYMENTS
ID.1. In consideration for the use of the Premises by River
2
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Boats under this Agreement, River Boats agrees to pay the City the
following sums:
A. Base Payment: River Boats agrees to deliver, without
prior demand, to the Manager of Special Services, Parks &
Recreation Division o£ Saint Paul, at 300 City Hall Annex, 25 W.
4th Street, St. Paul, M13 55102, or such other address as the City
may from time to time designate in writing, a base payment of Two
Thousand Five Hundred Dollars ($2,500.00), in lawful money of the
United States, per year. The first year's base payment shall be
delivered to the City upon final execution of this agreement. Each
year's base payment thereafter shall be delivered to the City in
two equal installments of $1,250 on July 1 and October l of each
year.
8, Percentage Payment:
1. During the first three years of this agreement
(1498, 1999, 2000) River Boats agrees to pay the City five percent
(5%j per annum, of its gross proceeds derived from the lease,
rental, license, charter or other use of its vessels for the
carrying of passengers. This percentage payment shall be
appliaable to all uses of River Boats' vessels for the carrying of
passengers which either originate or terminate at watergate Marina
or any other park, parkway, landing, public space, open space, or
other public property, owned and operated by the City of St. Paul,
per annum. This five percent (5%) per annum payment shall be due
and payable only to the extent that it exceeds the Base Payment of
Two Thousand Five Hundred Dollars ($2,500.00), per annum. The
amount of the Percentage Payment shall be the difference between
the Base Payment and the five percent (5°s} of River Boats' gross
proceeds derived from the lease, rental, license, charter, or other
use of its vessels for the carrying of passengers only, per annum.
Payments shall be made to the City no later than February 15th of
the year following the year in which the gross proceeds were
generated. (For example, all percentage payments due for the
calender year 1998 are due no later than February 15th, 1999.)
Payment shall be made in the manner provided for in Article IV. A.
1., of this agreement. Should the agreement be terminated prior to
the end of the term, the City shall be entitled to the five percent
(50) per annum payment on all proceeds generated up to the date
when River Boats vacates the Premises. Any such payment shall be
due and payable no later than thirty (30) days following River
Boats.vacation of the premises.
2. During the last two years oE this agreement (2001,
2002) , River Boats agrees to pay the �.ity five perce�nt (5%) per
annum, of its qross proceeds derived from all sourcES. "Gross
proceeds derived from all sources" means the agqregate dollar
amount received from any and all sales, leases, rentals, or other
services by River Boats from activities arisinq out of this
agreement, whether such sales, leases, rentals, or services be
3
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evidenced by check, credit, charge aocount, exchange, or otherwise,
and shall include, but not be limited to, the amounts received from
the sale, lease or rental of services, qoods, wares, merchandise,
beverages, food, or entertainment. "Gross proceeds derived from
all sources" shall also be construed to include all proceeds
derived from the lease, rental, license, charter, or other use vf
River Boats' vessels for the carrying of passengers. This
percentage payment shall be applicable to all uses of River Boats'
vessels which either originate or terminate at Watergate Marina or
any other park, parkway, landing, public space, open space, or
other public property which is owned and operated by the City oP
St. Paul, per annum. This five percent (5�) per annum payment
shall be due and payable only to the extent that it exceeds the
Base Payment of Two Thousand Five Hundred Dollars ($2,500�, per
annum. The amount of the Percentage Payment in years four and five
of this agreement shall be the differenae between the Base Payment
and the five percent (5°s) of River Boats "gross proceeds derived
from all sources". Payments shall be made to the City prior to the
last day of the year in which the "gross proceeds derived from all
sources" were generated. Payment shall be made in the manner
provided for in Article TV. A. 1., of this agreement. Should the
aqreement be terminated prior to the end of the term, the City
shall be enkitled to the five percent (5%) per annum payment on
"gross proceeds derived from all sources" generated up to the date
when River Boats vacates the Premises. Any such payment shall be
due and payable no later than thirty (30} days following River
Boats vacation of the premises.
3. Excluded Business Activities: Nothing contained in
Article IV. shall require River Boats to pay the City a Percentage
Payment for revenue generated Prom (a) vessels not covered in this
agreement; (b) vessels which are not moored at Watergate Marina and
do not operate from Watergate Marina; or (c) vessels covered by
this agreement which are removed from Watergate Marina and no
longer operate or moor at locations owned or operated by the City.
C. Records: River Boats shall keep at the premises, or at
495 Kenny Road, St. Paul, Minnesota, a permanent accurate set of
books and records of all sales, leases, rentals, arid charters, and
all transactions producing revenue derived from any business
conducted by River Boats or arising from the use of the base of
operations or vessels during each day of the term of this aqreement
which are subject to the percentage payment, and all supporting
documents, including cash register ribbons, sales slips, sales
checks, state sales and use tax reports, and business and:
occupation tax reports. All such pertinent records shall be kept,
retained, and preserved for at least three (3) years after the
ex�iration of each fiscal year or until the completion of any
litiqation �in which they are relevant, whichever is later. A11
such records shall be open to inspection by the City and its
agents, upon reasonable notice at all reasonable times during River
Boats ordinary business hours. River Boats_shall also be required
to keep records of disposal of sewage or other waste stored or
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produced on its vessels, appurtenant structures andjor "the
premises", as defined in Article II.2..
D. Audit: The acceptance by the City of payments of Base
Payments and Percentage Payments shall be without prejudice to the
City's riqht to an examination of River Boats books and records of
its transactions at the premises, 495 Kenny Road, or other
locations, in order to verify the amount of Percentage Payments
received by the City. The City may, at any reasonable time during
River Boats business hours, cause a complete audit to be made of
River Boats entire business affairs and records relating to its
business which arises out of its operations under this agreement
during the years of this agreement's Term, by a reputable licensed
accountant of the City's choice, at the City's cost. If such audit
discloses an overpayment of five percent (5%) or more by River
Boats to the City, the City shall refund the overpayment within
thirty (30) days of written demand. If such audit discloses an
error of five percent (50) or more in River Boats Percentage
Payment to the City as required by IV.A.5, of this agreement, (i)
River Boats shall pay the City the resultinq deficiency in the
Percentage payment as well as the cost of said audit, all within
thirty (30) days, and (ii) in addition, the City may, at its
option, terminate this Agreement on fifteen (15) days written
notice to River Boats.
E. Periodic Statements: River Boats sha11, no later than
February 15 of the year following the year in which the gross
proceeds were generated, deliver to the City a written statement of
all transactions which are subject to this ac3reement, occurring
during the fiscal year. (For example, the report due for the
calendar year 1998 is due no later than February 15, 1999.) This
Periodic Statement sha11 be prepared in accordance with generally
accepted accountinq principles consistently applied or other method
approved by the City's Chief Accountant, and satisfactory to
accurately account for all revenues which are subject to the
Percentage Fayment. This Periodic Statement shall be delivered,
whether or not a Percentage Payment is due and payable.
F. Rate Approval: Sixty (60) days prior to River Boats
commencement of operations during each year of the term it shall
deliver to the City a copy of all fees and charges that it intends
to make in conjunction with it operations. The City shall have the
right to approve such fees and charges before River Boats
implements them. For'the first year of this agreement the sixty
(60) day requirement is not applicable and River Boats agrees to
promptly deliver its rates upon execution of this agreement.
ARTICLE V
PERMITTED IISE
_ V.1. Generally: The premises may be used by River Boats only as
a base of operations and point of departure and/or return for
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passengers utilizing its vessels for cruises, charters, dining,
entertainment, and food and beverage services. River Boats sha11
not use or occupy the premises for any business or purpose other
than those set forth explicitly in this agreement. River Boats
shall not occupy any land at Watergate Marina, nor shall it make
any land based improvements or erect any structures, except for
those explicitly provided for in this agreement, or those permitted
in writinq by the City. River Boats shall not store any materials
of any kind on any land at Watergate Marina without the written
permission of the Watergate Marina Manager.
A. Base of Operations: River Boats may employ a loading
barge (hereinafter Barge) which is currently at the premises, as a
base of operations for its business at Watergate Marina. The Barge
shall be moored within the Lower Harbor in a location more
specifically described in Exhibit A. The Barge shall be utilized
as the embarkation point for passengers coming aboard or
disembarking from River Boats vessels. No other loading or
unloading point shall be allowed, unless necessary to load or
unload handicapped gassengers or unless first approved by the
Watergate Marina Manager. The Barge may also be utilized for
administrative purposes and for storaqe of supplies and material
secandary to River Boats operations at Watergate Marina. No other
use of the Barge shall be allowed. No service of any food or
beverages shall be made on the Barge. River Boats shall be entitled
to replace the Barge with another vessel of the same or smaller
size, upon written approval of the City, which approval sha11 not
be unreasonably denied. If River Boats decides not to use the
Barge as a base of operations, it may locate the Magnolia Blossom
at the same location and use it as both a base of operations and
passenger vessel.
B. Vessels: River Boats shall be allowed to operate ohly
those two vessels which are specifically identified and named the
"Magnolia Blossom" and "Maggie". River Boats shall not utilize or
allow any other vessels to operate from or pick up or drop off
passengers at the premises or its base of operations at Watergate
Marina. River Boats shall be entitled to replace either vessel
with another vessel of the same or smaller size, upon approval of
the City, which approval shall not be unreasonably denied. Any
replacement vessel shall be of the same general kind and quality
with similar passenger capacities and other accommodations and
offering the same manner of passenger transportation. In no event
shall River Boats be allowed to operate more than two (2) vessels.
Furthermore, any replacement of vessels shall not be allowed unless
and until this agreement is amended to reflect such repiacement.
The vessel "Magnolia Blos�aos." is to be moored on the west bank of
the Lower Harbor, immediat�ly behind the Barge, as that location is
more specifically delineated in Attachment A. The "Maggie" is to
be moored at a slip in Watergate Marina at no additional charge.
Alternatively, with the written permission of the City, the Maggie
may moor immediately behind the Magnolia Blossom. �
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C. Hours of ogeration: River Boats shall be allowed to
operate its business at Watergate only during the times from
sunrise to Midnight, on any particular day.
D. Parking: The City shall provide 50 parking spaces which
spaces may be used by River Boats customers and by other members of
the public. Parking shall be provided in the lot adjacent to the
Watergate Administration Building. The use of these parking spaces
by River Boats customers is not exclusive. To the extent that the
lot may be legitimately occupied by other vehicles owned by park or
marina users, River Boats customers shall be allowed to park along
the shore at the north end of the Lower Harbor. River Boats'
employees shall be permitted to park no more than five (5) of their
own vehicles and support vehicles at the north end of the Lower
Harbor as well. These locations are more specifically delineated
in Attachment A, and specifically incorporated herein. All River
Boats parking shall be done in an orderly manner and under the
general direction of the Manaqer of Watergate Marina. Parking for
River Boats customers shall be allowed only during River Boats
Aours of Operation. No parking for River Boats' customers or
employees shall be allowed on the peninsula located between the two
harbors or along the east shore of the Lower Harbor at Watergate
Marina without first obtaining written permission from the
Watergate Marina Manager. However, River Boats may temporarily
park no more than two (2) support vehicles at those locations, if
necessary to service its operations. In no event, may any support
vehicles be left at those locations overnight without first
obtaining the written permission of the Watergate Marina Manager.
E. Compliance with Law:
1. River Boats shall use and occupy the premises solely
for the purposes described in this agreement and will not use or
occupy the Premises for any unlawful purpose.
2. River Boats agrees to comply with all duly enacted
laws, ordinances, regulations and orders of all g4vernmental units
having jurisdiction over the Premises and its vessels and base of
operations.
3. River Boat specifically agrees to comply with and
observe a11 laws, ordinances, rules and regulations of the City,
State and federal government pertaining to discrimination in
employment, housing, education, and public accommodations on
grounds of race, color, creed, national origin or ancestry.
A. River Boats shall provide worker's compensation �
insurance for employees during the term of this agreement, if
required. A current certificate of insurance or an exemption
certificate, if required, shall be furnished to the City prior to
commencement of oparations.
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5. River Boats shall comply with all rules and
regulations established hy the U.S. Coast Guard governing craft on
navigable waters, and shall provide the City with a copy of the
USCG Certificate of Inspection of the vessels prior to any
commencement of River Boats ogerations. These Certificates shall
be maintained, updated and renewed as required by the U.S. Coast
Guard and River Boats shall provide the City with any updates or
renewals, in a timely fashion.
6. River Boats sha11 not cause or permit any
unreasonable noise, vibrations, odors or nuisance in or about the
premises or on its vessels or Barge which interferes with the quiet
enjoyment of the Marina or the navigable waters by slip lessees or
other lawful visitors or users. Zt is recognized that River Boats
will be offering entertainment, including musical bands, on its
vessels. However, no such entertainment sha11 be allowed within
Waterqate Harbor or upon the barge or base of operations, if the
Watergate Marina Manager determines that it is interfering with the
quiet enjoyment of the Marina by others.
7. River Boats shall, prior to operation, secure all
required permits and licenses pertaining to the sale or furnishing
of intoxicating liquors, beer, food, cigarettes, and any other
items River Boats intends to sell or of£er to its customers. River
Boats will further comply with any applicable licensing provisions
including, but not limited to, access for inspection and record
keeping.
F. Day to Day Operations:
1. River Boats shall maintain its vessels, base of
operations,barge, and any and all docks, ganq-planks, or other
methods of egress and ingress to its vessels and base of operations
in a well-kept, clean, sanitary, safe, lawful and comfortable
condition.
2. River Boats wi11, at a11 times, make its passenger
boat services available to the qeneral public.
3. River Boats will not allow its passenqers to leave
the vessels, barqe or the base of operations with any beverages or
food purchased from River Boats. It is recognized that passengers
f'or some charters may provide their own food and beverages and, in
those instances, the passengers may leave with those items.
4. River Boats will not hawk, peddle, or sell any
merchandise from Watergate Marii�a land. ` Souvenirs or other
merchandise may be sold from the vessels.
5. With respect to refuse or rubbish generated by or
resulting out of River Baats' operations, River Boats will use its
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best efforts to maintain the land around the base of operations and
paths or common courses of exit and entry from parking areas to the
base of operations in a clean and sanitary condition, and free from
refuse or rubbish which accumulates on its vessels, base of
operations, land around the base of operations, or which otherwise
is generated or results from River Boats' operations.
6. River Boats shall be responsible for providing for
and paying the costs related to the collection and disposition of
any trash or refuse that accumulates on its vessels, base of
operations, land around the base of operations, or is otherwise
generated or results from River Boats' operations.
7. River Boats shall not install, use, generate, store
or dispose of in or about the premises or any waters of the State
of Minnesota any hazardous substance, toxic chemical, pollutant,
waste material, or other material regulated by the Comprehensive
Environmental Response, Compansation and Liability Act of 1985 or
the Minnesota Environmental Response and Liability Act or any other
similar law or regulation, including without limitation any
material containinq asbestos or PCB, excepting normal waste that is
lawfully contained in the septic systems of the vessels and base of
operations, or normal bilge.
8. River Boats shall take all necessary precautivns and
exercise such supervision as may be necessary to ensure the safety
of passenqers, visitors, employees, and all others while on the
vessels, base of operations, during boarding and disembarking and
ta and from passenger's parking locations.
9. River Boats shall be responsible for securing any
necessary construction permits, archeological surveys, U.S. Coast
Guard, Minnesota Dept. of 23atural Resources or U.S. Army Corps of
Engineers permits or licenses, and any needed State or Local
licenses, permits or authorizations.
10. River Boats shall be responsible for any and all
applicable taxes, levies or assessments which may be assessed
against its operations.
11. River Boats shall be responsible for all day to day
operating expenses of the operation.
12. The City shall maintain the areas bf Watergate
Marina used for parking of River Boats' customers in a well-kept,
clean, sanitary, safe and lawful condition.
G. z�ignage:
1. River Boats may post and maintain signs, at its own
expense, at three locations: (i)up to two (2) signs at the entrance
to Hidden Falls/Crosby Farm Park at the intersection of Shepard
Road and Crosby Farm Road; (ii) at the entrance to Watergate
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Marina as it leads ofP of Crosby Farm Road; and (iii) at the shore
line abutting the premises and visible from the parking location.
2. All proposed signage sha11 first be approved by the
City, as to size, content, and location, and must be approved by
the Minnesota Department of Transportation if necessary and
otherwise comply with all applicable federal, state, municipal and
local statutes, laws, ordinances and regulations. A11 progosed
signage shall comply with the requirements £ound in the Minnesota
Manual on Uniform Traffic Control Devices, Part II-I, §2I-a through
2I-7. The City agrees to provide specifications to River Boats to
assist it in complying with this provision within 15 days of the
execution of this agreement.
ARTICLE VI
INDEMNIFICATION
VI.1. River Boats aqrees to indemnify, defend, save and hald
harmless the City of St. Paul and any agents, officers and
employees thereof from any loss, injury, death, ar damages to
persons or property and all claims, demands, actions or causes of
action of whatsoever nature or character which may be suffered or
sustained by any person, or other legal entity who may at any time
be using, occupying, visiting or otherwise present on River Boats'
vessels, base of operations, or the premises, if the loss, injury,
death, or damages shall be caused by or in any way result from or
arise out af any act, omission, or negliqence of River Boats, its
owners, operators, employees, agents, or any visitors, passengers,
customers or any other person or legal entity present on the
premises, vessels, or base of operations.
VI.2. Furthermore, River Boats agrees to hold the City harmless
and indemnify it for any and all charges, penalties, or assessments
imposed for any violation of any laws, ordinances, or regulations
arising out of actions or omissions of River Boats or its agents,
operatars, or employees.
ARTICLE VII
LIABILITY COVERAGE
VII.1. In orde.r to honor its duty to indemnify the City, River
Boats shall provide, at its own expense, a general liability
insurance policy from an insurance carrier licensed to do business
in Minnesota in which the City shall be named a�� an additio��al
insured, which policy shall cover the entire term of this agreemeiit
and any edditional time during which River Boats may be located at
or operating from City property, and shall cover injury to persons
or property arising out of the operations or activities of River
Boats in amounts of not less than Three Hundred Thousand Dollars
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($300,000.00) where the claim is one for injury or death by
wrongful act or omission and Seven Hundred and Fifty Thousand
Dollars ($?50, 000.00) for any number of claims arising out oP a
single occurrence. If the maximum liability is modifiad by the
legislature, River Boats shall be required to provide coverage
adequate to cover up to the limits of the City's maximum liability.
VZI.2. To the extent that River Boats intends and desires to be
held privately responsible for claims up to Two Hundred Thousand
Dollars ($200,000.00), River Boats sha11 be allowed to self-insure
up to this amount, provided first that it maintains a general
liability golicy for claims sxceeding this amount up to the limits
addressed above and, further, that it maintains at all times a
certificate of deposit or treasury savings account as collateral in
the amount of self-insurance it decides to self insure itself for.
River Boats shall at all times guarantee and maintain the
certificate of deposit or treasury savings account in the full
amount of self-insurance provided pursuant to this agreement for
the purpose of satisfying any judgment against the City. Prior to
this agreement becoming effective, River Boats shall execute a
written agreement with a federally insured Bank or other financial
institution, lawfully doing business in the State of Minnesota, and
issuing the certifiaate of deposit or treasury savings account,
which requires the bank to notify, in writinq, the City of St. Paul
through its Manager of Special Services, Parks & Recreation
Divisian of St. Paul, at 300 City Hall Annex, 25 W. 4th Street, St.
Paul, MN 55162, not less than thirty (30) days before the
certificate of deposit or treasury savings account is transferred,
encumbered, posted as collateral for any other debt or obligation,
gifted, devised, or otherwise compromised. However, if there are
pending claims against the City, the agreement, shall provide that
there is to be no such transfer or other compromise of the
Certificate of Degosit or treasury savings account without first
obtaining the City's express written consent. Any transfer or
compromise of the Certificate of Deposit or treasury savings
account, without the City of St. Paul's express written consent,
will automatically work an immediate termination of this agreement.
River Boats shall exclusively be entitled to any interest earned on
said certificate of deposit or treasury savings account.
Concomitant with the duty to indemnify, River Boats also aqrees ta
apply the funds held as self-insurance to any claimant who secures
a judgment against River Boats or the City arising out of any claim
for damages in connection with River Boats operations, subject to
the terms of the obligation to indemnify. Furthermore, River Boats
expressly agrees to cooperate fully with the City in investigating
any and all claims for damages brought by the City or third
partie:.�. To this end, River 3oats agreas to provide the City with
any and all documents relating to any claims including, without
limitation, insurance forms, written reports, records of repairs or
damages, any and a12 statement of witnesses, photographs, drawings
or other related visual or audio recordings or depictions. River
Boats shall also make available its officers, employees and agents
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for oral interviews or depositions and shall timely comply with all
discovery requests.
ARTICLE V2II
ASSIGNMENT
VIII.1. River Boats shall not assign, transfer, sublet, pledge,
mortqage or otherwise transfer rights and responsibilities
(hereinafter referred to as an "assignment"), delegated to it under
this agreement to any third party; nor shall any assignment of the
rights and responsibilities designated to River Boats under this
agreement be effectuated by operation of law or otherwise, without
in each such case obtaining the prior written consent of the City,
which consent shall not be denied unless the City makes a good
faith fletermination that the proposed assignee lacks sufficient
financing or experience to assume ar maintain a passengar vessel
operation, has a felony criminal conviction in the past ten {10)
years, or otherwise has a history of past business practices or
experiences indicating unsuccessful ventures or poor business
practices or business judgment.
vIII.2. If River Boats desires to make an assignment, it shall
first notify the City of its desire to do so and shall submit in
writing to the City (i) the name of the proposed assignee, (ii) the
nature of the proposed assignee's business, (iii) a copy oP the
proposed assignment agreement and any other agreements to be
entered into concurrently with such assignment, including full
disclosure of all financial terms, and (iv) such financial
infarmation as the City may reasonably request concerning the
proposed Assignee. River Boats shall pay the City a reasonable fee
for the City's expenses, including attorneys' fees, in reviewing
such proposed assignment and in reviewing the proposed assignee's
financial ability to assume the agreement, said fee not to exceed
$500.00.
VIII.3. If, at any time during the term of this agreement, there
shall occur any change in the identity of any of the persons,
including Harry Euqene Cassidy, (excepting his immediate family),
presently having power to participate in or control the day to day
operations of the corporation River Boats, or any other change in
the corporate structure of River Boats, or the transfer or
alteration in the method of control or decision making regarding
River Boats, such change or alteration shall be deemed to be an
assignment. Any such change shall wo'rk an immediate termination of
this agreement unless such change is tirst approved by the City in
the manner provided above for other assignments.
ARTICLE IR
IMPRODEMENTS
Z%.1. River Boats shall be responsible for all costs incurred
in establishing and maintaining services to its operation,
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including site preparations and improvements and the establishment
or extension of any necessary water and electrical services from
existinq locations. Any proposed improvements shall first be
approved by the City. Site improvements shall be limited to those
necessary to qain access to the base of operations and vessels via
stairs, ramp, dock andJor gangplank. River Boats shall be entitled
to install no more than two vandal lights, without prior written
consent of the City. The kind and quality of said lights sha11 be
first approved by the Manager of Watergate Marina and s/he may
refuse any lights which s/he reasonably believes would interfere
with the enjoyment of other slip lessees. The City will permit
River Boats to obtain water from Waterqate Marina via the use of
hoses for the vessels and base of operations.
IB.2. All site improvements and extension or establishment of
services shall comply with all applicable federal, state, county
and local laws, regulation, ordinances or other lawful requirements
or limitations. Al1 improvements and extensions shall be done in
an orderly and workmanlike manner and shall not materially alter
the appearance of or limit access to Watergate Marina. River Boats
shall be required, at the City's option, to remove any and all
improvements upon termination.
I%.3. River Boats shall bear the cost and shall fully and
promptly pay Por all gas, heat, light, power, telephone service,
and other public utilities of every kind furnished to the premises,
with the exception of water used via hoses, throughout the term of
this agreement.
IX.4. Should the City expand Watergate Marina or alter its
configuration so as to displace River Soats' location of operations
the City shall bear all costs in relocating, including the
extension of necessary services to River Boats within Watergate
Marina at a location acceptable to both parties.
ARTICLE X
TERMINATION
R.1. If either party shall fail or neglect to observe, keep,
or perform any of the terms, conditions, requirements or
obligations contained in this agreement on its part to be observed,
kept or performed, and the default shall continue for a period of
thirty (30) days following delivery of written notice specifically
describing the alleged default and a demand that it be cured, then
the party not in dafault shall have the right at its option, on
written notice, delivered to the defaulting party, to terminate
this agreemsnt, effective�immediately. If eithEr party fails or
neglects to observe, keep or perform any of the tarms, conditions,
requirements or obligations contained in the aqreement on its part
to be observed, kept or performed, on two (2) or more separate
occasions, then the party not in default shall have the right, at _
its option, on written notice, delivered to the defaulting party,
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to terminate this agreement, effective immediately, regardless of
whether or not either or both of the breaches have been cured.
x.2. Upon termination of the agreement, in the manner provided
in Article X.1, River Boats shall vacate the premises within sixty
(60) days. If River Boats fails to timely vacate, the City may,
without further notice to River Boats, have the right immediately
to enter and take possession of the premises with or without
process of law and to remove all of River Boats property and
improvements from the premises and all persons occupying the
premises and to use all necessary force therefor and in all
respects to take the actual, full, and exclusive possession of the
premises without incurring any liability to River Boats due to
repossession. Zn furtherance of any repossession, the City may
have the base of operations, barge, and vessels removed £rom the
premises. Furthermore, the City shall be entitled to Percentage
Payments accrued up to the date of repossession. If it is later
determined by a court of competent jurisdiction that there was no
basis for termination resulting in the exercise of the City's
rights under this paragraph than the City will be responsible for
damages resulting from any repossession, as provided for by law.
5.3. With the exception of removable docks and improvements to
vessels, upon termination of this agreement the City shall become
the owner of any and all improvements made to the premises and
River Boats is prohibited from removing or destroying any such
improvements.
%.4. Termination of this agreement, in the method provided
for, shall not operate as a bar to any other lawful action or
process available to either party.
X.S. The City, at its expense, shall promptly remove any
navigational obstructions such as cable, pipes, stumps and other
debris along the West shore of the harbor, which interfere with the
navigation or mooring of River Boats' vessels in the harbor.
%.6. The City shall be responsible for designating the
original and any subsequent placements and locations of the River
Boat's vessels and base of operations. River Boats shall bear the
cost of the original placement and location, subject to Article
I2.3, above.
ARTICLE XI
ADDITIONAL PROVISIONS �
%I.1. waiver: A waiver by either party of any breach of this
agreem��nt is not a waiver of any other or subsequent breach of this
agreement.
XI.3. Attorneys' Fees: In the event that any action is filed
in relation to this agreement, the_unsuccessful party in the action
sha11 pay to the successful party, in addition to all the sums that
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either garty may be caZied on to pay, a reasonable sum for the
success£ul party's attorney fees. This provision does not apply to
legal fees for outside counsel who represent the City.
%2.4. Entire Agzeement: This agreement constitutes the entire
aqreement between the parties. No representatians, warranties,
undertakings, or promises, whether oral, implied, written, or
otherwise, have been made by either party hereto to the other
unless expressly stated in this agreement or unless reduced to an
amendment executed in the fashion provided for below.
SI.S. Amendments: Any amendments or modifications to this
agreement shall be in writing, shall be attached to and made a part
of this agreement, and sha11, if necessary, be first approved, as
to form, by the St. Paul City Attorney's Office and executed by the
same parties who executed the original agreement, or their
authorized representatives.
%I.6. No Partnership, Joint Venture, or Fiduciary Relationship
Created Hereby: Nothing contained in this agreement shall be
interpreted as creating a partnership, jaint venture, or
relationship of prinaipal and aqent between the City and River
Boats. River Boats is prohibited from expressing or implying any
suah relationship or using any City of St. Paul logos in any
advertisements, brochures or other medium.
%I.7. severable Provisions: Each provision, section, sentence,
clause, phrase, and word of this agreement is intended to be
severable. If any provision, section, sentence, clause, phrase,
and word hereof is illegal or invalid for any reason whatsoever,
such illegality or invalidity shall not affect the legality or
validity of the remainder of this agreement.
XI.B. Eminent Domain: If the premises or any part thereof, or
any abutting property resulting in lack of access to the premises,
are taken by virtue of eminent domain, this agreement shall
terminate on the date title vests pursuant to the taking. Nothing
herein sha11 in any way abrogate River Boats' rights with respect
to eminent domain, including the right to just compensation, if
any, in the event of a taking.
%I.9. Captions: All captions, headings, or titles in the
articles, paragraphs or sections of this agreement are inserted for
convenience of reference only and shall not constitute a part of
this agreement as a limitation of the scope of the particular
paragraphs or sections to which they apply.
� �
%I.10. Force Majeure: This aqreement shall automaticaZly
terminate upon any act of God, civil riot or disturbance, war, or
natural ealamity which renders the premises or either party
incapable of performing their obligations under this agreement. If
the Force Majeure event is temporary in nature, such event shall
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act to suspend, rather than terminate performance.
IN WITNESS WHEREOF, the parties hereto have signed this
agreement the day and year first above written.
APPROVED AS TO FORM:
Assistant City Attorney
River Boats Inc.
B . ri�.2t�tG ,
ITS • ` �
CITY OF SAII3T PAUL
Mayor, City of St. Paul
Director, Finahce & Management
Services
City Clerk
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APPRCIX. LOCATId�
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6/2/98 B. Tourtefotte
Council File # � p - 8��
ORlGINAL
Presented By
Referred to
Committee: Date
1 WHEREAS, Riverboats Inc. desires to operate a passenger vessel
2 service on navigable waters and to make the vessels available for
3 hire by the public for trips, cruises, charters, dining,
4 entertainment and food and beverage services, and agrees to
5 locate and operate from a portion of Watergate Marina, located in
6 Saint Pau1 and owned and operated by the City of Saint Paul, and;
7 WHEREAS, the City recognizes that this operation would provide a
8 benefit to the public by expanding opportunities for enjoyment of
9 the Mississippi River and the City of Saint Paul�s river front
10 environment, and;
11
12
13
14
15
16
WAEREAS, the entering into this agreement is part of settling the
law suit filed by Riverboats Inc, against the City and Robert P.
Piram, Superintendent of Parks and Recreation.
NO THEREFORE BE IT RESOLVED, that the proper City officials and
staff are hereby directed and authorized to enter into the
attached lease agreement with Riverboats Inc.
Yeas Nays Absent
8enanav �
BZakey_ �
Bostrom � � f
Xarris '!
Col eman �
Lantry_ �
Rezter
� � �
Adopted by Council: Date �
Adoption Certified by Council Secretary
By
�C'��'S',
�
RESOLUTit?N
CI'fY OF SAINT PAUL, MINNESOTA
Green Sheet # tp a�t 3�
as
aequested by:
' ision of Par s and e ation �
By . �+--�._
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Form Approved by city Attorney
By: � �-.'i-Y,-'����
r Mayor
e �
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to
_ ....,.�crv ilOFflCE/COUNCII
Parks and Recreation
COWTACT PERSON ANp PHONE
�ATE INRIATED
July 30, 7998
Vic Wittgenstein (226-6409) q ��� p
HUMeEPFDq�
MUST BE Ofi COUNCIL AGENDA BY I�Aip aOtrtING
OfiDEH
ASAP
TOTAL J OF SIGNANNE PAGES � (CLIP ALL LOCA710NS FOH SIONANflE)
ACiION fiEQUESTED:
a�-810
GREEN SHEET � 5� NO. 62731
INfTiAUDATE INITIAVDATE
� OEPnRTMENT OIRECTOR �I CT' fAUNC1L
Z CRY A7TORNEY _CfiY CtERK
_FINANCiaL SERVICES OIR,
3 MAVOR (OR ASSISTANA 5 Parks & Recreation
Signatures of the Superintendent of Parks and Recreation, City Attorney, and Mayor and passage of the attached
Council Resolution by the City Council.
AECOMMENDATIONS: Appruve {A) ot Rejsct (FI
_PLANNIN6 LOMMISSION __CIVIL SEflvICE COMMISSIDN
_C16 CoMM1Ti'EE _
A srAr-� _
__OISTRICTCOUNGiI __
SUPPDqTS WHICH COUNdL O&lECTIVE?
INRIATING PpO61.EM. ISSUE, OPPORTUNRY iH'ho, LVhat. When. YVhere, YVhy�:
PERSON0.l SERVICE CANiRACTS MUST ANSWER THE WLIOWING QUESTIONS:
L Has thrs personitirm ever worketl untler a cmttact for [his tlepartment?
Y£5 NO
2. Has this persoNfirm ever 6een e ciry empbyee?
YES NO
3. Does th�s persoNfirtn possess a sWll nat normalry possessetl by any current ciry em0�oyee?
YE$ NO
Explain all yas answaes on saparate 5heet and attach to grean aheet.
Riverboats Inc. desires to operate a passenger vessel service out of Watergate Marina. This activity can add to the
recreational use of the river by the public.
��'�NEf�
\�VANTAGE5IF APPflOVED:
� 3 199�
Adds an etement to the City`s recreation arena. ei�j ,
is part ot the settlement of the law suit between Riverboats Inc. and the C�y���Q�`
YDVANTAGES IF APPROVEO:
ne
✓ANTAGES IF NOT APPROVED:
aw suit against the City wili go forward.
Counc°s3 Researcti Cen+er
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ADUNTOFTRANSACTION S �L.�JOO - F
+ouece Wateroate Marina
COST/REVENUE BUUGEfED ICtliCLE ONEI YES NO
acrrvrtv Hnme�t � 23160
INFDflMAT1ON: �EXPLAIN) Riverboats Inc. shall pay the City SZ,500 annually or 5°h of its gross revenues derived trom
t passenqers in 1998-2Q00 and 5% of its gross revenue from all sources in 2001 & 2002.
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This agreement is made and executed on this day of
, 1998, by and between River Boats Inc., a corporation
organized and existing under the laws of the State of Minnesota,
having its principal office at 495 Kenny Rd., St. Paul, MN 55101
(hereafter River Boats), and the City of Saint Paul, a municipal
corporation (hereafter the City).
ARTICLE I
RECZTALS
WHEREAS, River Boats desires to operate a passenger vessel service
on navigable waters and ta make the vessels available for hire by
the public for trips, cruises, charters, dininq, entertainment and
food and beverage services, and agrees to locate and operate from
a portion of Watergate Marina, located in St. Paul and owned and
operated by the City of St. Paul, and;
wHEREAS, the City recognizes that this operation would provide a
benefit to the public by expanding opportunities for enjoyment of
the Mississippi River and the City of Saint Paul's riverfront
environment.
NOA, THEREFORE, in consideration of the promises and mutual
covenants herein contained, it is agreed as follows:
ARTFCLE II
DESCRZPTION OF PREMISES
II.1. City shall permit River Boats, for the limited purpose
more fully described in Article V, and here generally described as
the conducting a passenger vessel service, upon that certain area
of the land and harbor space, located at Watergate Marina, situated
in the City of St. Paul, County of Ramsey, State of Minnesota, as
that certain area is more particularly described in Exhibit A,
attached hereto and made a part of this agreement by incorporation.
Z2.2. As used in this agreement, the term "premises" shall
refer to the real property as we11 as the areas used, traversed or
occupied by River Boats upon the waters within the Lower Harbor of
Watergate Marina, all as more particularly described in Exhibit A.
IZ.3. It is the intent of the parties that River Boats locate
at and operate fr��m the Northwe_;tern most portion of the Lower
Harbor, as that area is more part�cularly described in Exhihit A.
However, to that end, the City agrees to make its best effort to
promptly dredge that location, at its expense, to make the location
suitable for River Boats' operation. Should the location, by the
agreement of both parties, be otherwise unsuitable, the City will
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allow River Boats to relocate to another location adjacent to the
western bank inside the Lower Harbor, provided that such relocation
can be accomplished without impeding other marina traffic. Any
such relocation of River Boats' operation shall be made at River
Boats' expense unless River Boats has already completed extension
of services to the Northwestern portion of the Lower Harbor and
otherwise put in all ramps, docks, and vandaZ liqhts at that
location. If River Boats has already completed extension of
services to the Northwestern portion of the Lower Harbor and
otherwise put in all ramps, docks, and vandal lights at that
location, the relocatian expenses shall be borne by the City.
ARTICLE IZI
TERM OF AGREEMENT
IZI.1. The term of this agreement shall be for five (5) years,
commencing on May 1, 1998, or when the agreement is authorized and
executed in accordance with the provisions of the City of 5aint
Paul Administrative Code, Chapter 86, whichever last occurs, and
ending on October 31, 2002; unless earlier terminated in the manner
provided for in this agreement.
III.2. This agreement shall not be construed as providing,
either explicitly or implicitly, for any right to renewal or at-
will tenancy, upan the expiration of its term or upon termination.
However, if there has been no uncured breaah of this agreement, for
which the City has given written notice or if the agreement has not
been terminated due to a breach, the City shall provide River Boats
with an option to renew the Agreement for another four-year term,
at rates to be negotiated, at Watergate Marina or another location
suitable to River Boats if Watergate Marina will no longer be used
for commercial Passenger Vessel Services.
III.3. River Boats has no right to enter, locate at, operate
from, remain or possess the premises prior to or after the term of
this agreement, or its termination. River Boats shall vacate the
premises thirty (30) days following termination of the agreement or
thirty (30) days following the end of the term on october 31, 2002,
whichever occurs first. Should River Boats fail to vacate the
premises in the time provided for in this agreement, the City shall
be entitled to reasonable liquidated damages in an amount of
$150.00 per day, which sum is believed to be a fair pre-estimate of
such damages and is agreed between the parties to be a fair amount,
reasonable in the light of the anticipated harm whiah could be
caused by the breach, the difficulty of proof of lo'ss, and the
inconvenience or non-feasibility of otherwise obtaining an adequate
remedy.
ART�CLE IQ
PAYMENTS
ID.1. In consideration for the use of the Premises by River
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Boats under this Agreement, River Boats agrees to pay the City the
following sums:
A. Base Payment: River Boats agrees to deliver, without
prior demand, to the Manager of Special Services, Parks &
Recreation Division o£ Saint Paul, at 300 City Hall Annex, 25 W.
4th Street, St. Paul, M13 55102, or such other address as the City
may from time to time designate in writing, a base payment of Two
Thousand Five Hundred Dollars ($2,500.00), in lawful money of the
United States, per year. The first year's base payment shall be
delivered to the City upon final execution of this agreement. Each
year's base payment thereafter shall be delivered to the City in
two equal installments of $1,250 on July 1 and October l of each
year.
8, Percentage Payment:
1. During the first three years of this agreement
(1498, 1999, 2000) River Boats agrees to pay the City five percent
(5%j per annum, of its gross proceeds derived from the lease,
rental, license, charter or other use of its vessels for the
carrying of passengers. This percentage payment shall be
appliaable to all uses of River Boats' vessels for the carrying of
passengers which either originate or terminate at watergate Marina
or any other park, parkway, landing, public space, open space, or
other public property, owned and operated by the City of St. Paul,
per annum. This five percent (5%) per annum payment shall be due
and payable only to the extent that it exceeds the Base Payment of
Two Thousand Five Hundred Dollars ($2,500.00), per annum. The
amount of the Percentage Payment shall be the difference between
the Base Payment and the five percent (5°s} of River Boats' gross
proceeds derived from the lease, rental, license, charter, or other
use of its vessels for the carrying of passengers only, per annum.
Payments shall be made to the City no later than February 15th of
the year following the year in which the gross proceeds were
generated. (For example, all percentage payments due for the
calender year 1998 are due no later than February 15th, 1999.)
Payment shall be made in the manner provided for in Article IV. A.
1., of this agreement. Should the agreement be terminated prior to
the end of the term, the City shall be entitled to the five percent
(50) per annum payment on all proceeds generated up to the date
when River Boats vacates the Premises. Any such payment shall be
due and payable no later than thirty (30) days following River
Boats.vacation of the premises.
2. During the last two years oE this agreement (2001,
2002) , River Boats agrees to pay the �.ity five perce�nt (5%) per
annum, of its qross proceeds derived from all sourcES. "Gross
proceeds derived from all sources" means the agqregate dollar
amount received from any and all sales, leases, rentals, or other
services by River Boats from activities arisinq out of this
agreement, whether such sales, leases, rentals, or services be
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evidenced by check, credit, charge aocount, exchange, or otherwise,
and shall include, but not be limited to, the amounts received from
the sale, lease or rental of services, qoods, wares, merchandise,
beverages, food, or entertainment. "Gross proceeds derived from
all sources" shall also be construed to include all proceeds
derived from the lease, rental, license, charter, or other use vf
River Boats' vessels for the carrying of passengers. This
percentage payment shall be applicable to all uses of River Boats'
vessels which either originate or terminate at Watergate Marina or
any other park, parkway, landing, public space, open space, or
other public property which is owned and operated by the City oP
St. Paul, per annum. This five percent (5�) per annum payment
shall be due and payable only to the extent that it exceeds the
Base Payment of Two Thousand Five Hundred Dollars ($2,500�, per
annum. The amount of the Percentage Payment in years four and five
of this agreement shall be the differenae between the Base Payment
and the five percent (5°s) of River Boats "gross proceeds derived
from all sources". Payments shall be made to the City prior to the
last day of the year in which the "gross proceeds derived from all
sources" were generated. Payment shall be made in the manner
provided for in Article TV. A. 1., of this agreement. Should the
aqreement be terminated prior to the end of the term, the City
shall be enkitled to the five percent (5%) per annum payment on
"gross proceeds derived from all sources" generated up to the date
when River Boats vacates the Premises. Any such payment shall be
due and payable no later than thirty (30} days following River
Boats vacation of the premises.
3. Excluded Business Activities: Nothing contained in
Article IV. shall require River Boats to pay the City a Percentage
Payment for revenue generated Prom (a) vessels not covered in this
agreement; (b) vessels which are not moored at Watergate Marina and
do not operate from Watergate Marina; or (c) vessels covered by
this agreement which are removed from Watergate Marina and no
longer operate or moor at locations owned or operated by the City.
C. Records: River Boats shall keep at the premises, or at
495 Kenny Road, St. Paul, Minnesota, a permanent accurate set of
books and records of all sales, leases, rentals, arid charters, and
all transactions producing revenue derived from any business
conducted by River Boats or arising from the use of the base of
operations or vessels during each day of the term of this aqreement
which are subject to the percentage payment, and all supporting
documents, including cash register ribbons, sales slips, sales
checks, state sales and use tax reports, and business and:
occupation tax reports. All such pertinent records shall be kept,
retained, and preserved for at least three (3) years after the
ex�iration of each fiscal year or until the completion of any
litiqation �in which they are relevant, whichever is later. A11
such records shall be open to inspection by the City and its
agents, upon reasonable notice at all reasonable times during River
Boats ordinary business hours. River Boats_shall also be required
to keep records of disposal of sewage or other waste stored or
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produced on its vessels, appurtenant structures andjor "the
premises", as defined in Article II.2..
D. Audit: The acceptance by the City of payments of Base
Payments and Percentage Payments shall be without prejudice to the
City's riqht to an examination of River Boats books and records of
its transactions at the premises, 495 Kenny Road, or other
locations, in order to verify the amount of Percentage Payments
received by the City. The City may, at any reasonable time during
River Boats business hours, cause a complete audit to be made of
River Boats entire business affairs and records relating to its
business which arises out of its operations under this agreement
during the years of this agreement's Term, by a reputable licensed
accountant of the City's choice, at the City's cost. If such audit
discloses an overpayment of five percent (5%) or more by River
Boats to the City, the City shall refund the overpayment within
thirty (30) days of written demand. If such audit discloses an
error of five percent (50) or more in River Boats Percentage
Payment to the City as required by IV.A.5, of this agreement, (i)
River Boats shall pay the City the resultinq deficiency in the
Percentage payment as well as the cost of said audit, all within
thirty (30) days, and (ii) in addition, the City may, at its
option, terminate this Agreement on fifteen (15) days written
notice to River Boats.
E. Periodic Statements: River Boats sha11, no later than
February 15 of the year following the year in which the gross
proceeds were generated, deliver to the City a written statement of
all transactions which are subject to this ac3reement, occurring
during the fiscal year. (For example, the report due for the
calendar year 1998 is due no later than February 15, 1999.) This
Periodic Statement sha11 be prepared in accordance with generally
accepted accountinq principles consistently applied or other method
approved by the City's Chief Accountant, and satisfactory to
accurately account for all revenues which are subject to the
Percentage Fayment. This Periodic Statement shall be delivered,
whether or not a Percentage Payment is due and payable.
F. Rate Approval: Sixty (60) days prior to River Boats
commencement of operations during each year of the term it shall
deliver to the City a copy of all fees and charges that it intends
to make in conjunction with it operations. The City shall have the
right to approve such fees and charges before River Boats
implements them. For'the first year of this agreement the sixty
(60) day requirement is not applicable and River Boats agrees to
promptly deliver its rates upon execution of this agreement.
ARTICLE V
PERMITTED IISE
_ V.1. Generally: The premises may be used by River Boats only as
a base of operations and point of departure and/or return for
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passengers utilizing its vessels for cruises, charters, dining,
entertainment, and food and beverage services. River Boats sha11
not use or occupy the premises for any business or purpose other
than those set forth explicitly in this agreement. River Boats
shall not occupy any land at Watergate Marina, nor shall it make
any land based improvements or erect any structures, except for
those explicitly provided for in this agreement, or those permitted
in writinq by the City. River Boats shall not store any materials
of any kind on any land at Watergate Marina without the written
permission of the Watergate Marina Manager.
A. Base of Operations: River Boats may employ a loading
barge (hereinafter Barge) which is currently at the premises, as a
base of operations for its business at Watergate Marina. The Barge
shall be moored within the Lower Harbor in a location more
specifically described in Exhibit A. The Barge shall be utilized
as the embarkation point for passengers coming aboard or
disembarking from River Boats vessels. No other loading or
unloading point shall be allowed, unless necessary to load or
unload handicapped gassengers or unless first approved by the
Watergate Marina Manager. The Barge may also be utilized for
administrative purposes and for storaqe of supplies and material
secandary to River Boats operations at Watergate Marina. No other
use of the Barge shall be allowed. No service of any food or
beverages shall be made on the Barge. River Boats shall be entitled
to replace the Barge with another vessel of the same or smaller
size, upon written approval of the City, which approval sha11 not
be unreasonably denied. If River Boats decides not to use the
Barge as a base of operations, it may locate the Magnolia Blossom
at the same location and use it as both a base of operations and
passenger vessel.
B. Vessels: River Boats shall be allowed to operate ohly
those two vessels which are specifically identified and named the
"Magnolia Blossom" and "Maggie". River Boats shall not utilize or
allow any other vessels to operate from or pick up or drop off
passengers at the premises or its base of operations at Watergate
Marina. River Boats shall be entitled to replace either vessel
with another vessel of the same or smaller size, upon approval of
the City, which approval shall not be unreasonably denied. Any
replacement vessel shall be of the same general kind and quality
with similar passenger capacities and other accommodations and
offering the same manner of passenger transportation. In no event
shall River Boats be allowed to operate more than two (2) vessels.
Furthermore, any replacement of vessels shall not be allowed unless
and until this agreement is amended to reflect such repiacement.
The vessel "Magnolia Blos�aos." is to be moored on the west bank of
the Lower Harbor, immediat�ly behind the Barge, as that location is
more specifically delineated in Attachment A. The "Maggie" is to
be moored at a slip in Watergate Marina at no additional charge.
Alternatively, with the written permission of the City, the Maggie
may moor immediately behind the Magnolia Blossom. �
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C. Hours of ogeration: River Boats shall be allowed to
operate its business at Watergate only during the times from
sunrise to Midnight, on any particular day.
D. Parking: The City shall provide 50 parking spaces which
spaces may be used by River Boats customers and by other members of
the public. Parking shall be provided in the lot adjacent to the
Watergate Administration Building. The use of these parking spaces
by River Boats customers is not exclusive. To the extent that the
lot may be legitimately occupied by other vehicles owned by park or
marina users, River Boats customers shall be allowed to park along
the shore at the north end of the Lower Harbor. River Boats'
employees shall be permitted to park no more than five (5) of their
own vehicles and support vehicles at the north end of the Lower
Harbor as well. These locations are more specifically delineated
in Attachment A, and specifically incorporated herein. All River
Boats parking shall be done in an orderly manner and under the
general direction of the Manaqer of Watergate Marina. Parking for
River Boats customers shall be allowed only during River Boats
Aours of Operation. No parking for River Boats' customers or
employees shall be allowed on the peninsula located between the two
harbors or along the east shore of the Lower Harbor at Watergate
Marina without first obtaining written permission from the
Watergate Marina Manager. However, River Boats may temporarily
park no more than two (2) support vehicles at those locations, if
necessary to service its operations. In no event, may any support
vehicles be left at those locations overnight without first
obtaining the written permission of the Watergate Marina Manager.
E. Compliance with Law:
1. River Boats shall use and occupy the premises solely
for the purposes described in this agreement and will not use or
occupy the Premises for any unlawful purpose.
2. River Boats agrees to comply with all duly enacted
laws, ordinances, regulations and orders of all g4vernmental units
having jurisdiction over the Premises and its vessels and base of
operations.
3. River Boat specifically agrees to comply with and
observe a11 laws, ordinances, rules and regulations of the City,
State and federal government pertaining to discrimination in
employment, housing, education, and public accommodations on
grounds of race, color, creed, national origin or ancestry.
A. River Boats shall provide worker's compensation �
insurance for employees during the term of this agreement, if
required. A current certificate of insurance or an exemption
certificate, if required, shall be furnished to the City prior to
commencement of oparations.
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5. River Boats shall comply with all rules and
regulations established hy the U.S. Coast Guard governing craft on
navigable waters, and shall provide the City with a copy of the
USCG Certificate of Inspection of the vessels prior to any
commencement of River Boats ogerations. These Certificates shall
be maintained, updated and renewed as required by the U.S. Coast
Guard and River Boats shall provide the City with any updates or
renewals, in a timely fashion.
6. River Boats sha11 not cause or permit any
unreasonable noise, vibrations, odors or nuisance in or about the
premises or on its vessels or Barge which interferes with the quiet
enjoyment of the Marina or the navigable waters by slip lessees or
other lawful visitors or users. Zt is recognized that River Boats
will be offering entertainment, including musical bands, on its
vessels. However, no such entertainment sha11 be allowed within
Waterqate Harbor or upon the barge or base of operations, if the
Watergate Marina Manager determines that it is interfering with the
quiet enjoyment of the Marina by others.
7. River Boats shall, prior to operation, secure all
required permits and licenses pertaining to the sale or furnishing
of intoxicating liquors, beer, food, cigarettes, and any other
items River Boats intends to sell or of£er to its customers. River
Boats will further comply with any applicable licensing provisions
including, but not limited to, access for inspection and record
keeping.
F. Day to Day Operations:
1. River Boats shall maintain its vessels, base of
operations,barge, and any and all docks, ganq-planks, or other
methods of egress and ingress to its vessels and base of operations
in a well-kept, clean, sanitary, safe, lawful and comfortable
condition.
2. River Boats wi11, at a11 times, make its passenger
boat services available to the qeneral public.
3. River Boats will not allow its passenqers to leave
the vessels, barqe or the base of operations with any beverages or
food purchased from River Boats. It is recognized that passengers
f'or some charters may provide their own food and beverages and, in
those instances, the passengers may leave with those items.
4. River Boats will not hawk, peddle, or sell any
merchandise from Watergate Marii�a land. ` Souvenirs or other
merchandise may be sold from the vessels.
5. With respect to refuse or rubbish generated by or
resulting out of River Baats' operations, River Boats will use its
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best efforts to maintain the land around the base of operations and
paths or common courses of exit and entry from parking areas to the
base of operations in a clean and sanitary condition, and free from
refuse or rubbish which accumulates on its vessels, base of
operations, land around the base of operations, or which otherwise
is generated or results from River Boats' operations.
6. River Boats shall be responsible for providing for
and paying the costs related to the collection and disposition of
any trash or refuse that accumulates on its vessels, base of
operations, land around the base of operations, or is otherwise
generated or results from River Boats' operations.
7. River Boats shall not install, use, generate, store
or dispose of in or about the premises or any waters of the State
of Minnesota any hazardous substance, toxic chemical, pollutant,
waste material, or other material regulated by the Comprehensive
Environmental Response, Compansation and Liability Act of 1985 or
the Minnesota Environmental Response and Liability Act or any other
similar law or regulation, including without limitation any
material containinq asbestos or PCB, excepting normal waste that is
lawfully contained in the septic systems of the vessels and base of
operations, or normal bilge.
8. River Boats shall take all necessary precautivns and
exercise such supervision as may be necessary to ensure the safety
of passenqers, visitors, employees, and all others while on the
vessels, base of operations, during boarding and disembarking and
ta and from passenger's parking locations.
9. River Boats shall be responsible for securing any
necessary construction permits, archeological surveys, U.S. Coast
Guard, Minnesota Dept. of 23atural Resources or U.S. Army Corps of
Engineers permits or licenses, and any needed State or Local
licenses, permits or authorizations.
10. River Boats shall be responsible for any and all
applicable taxes, levies or assessments which may be assessed
against its operations.
11. River Boats shall be responsible for all day to day
operating expenses of the operation.
12. The City shall maintain the areas bf Watergate
Marina used for parking of River Boats' customers in a well-kept,
clean, sanitary, safe and lawful condition.
G. z�ignage:
1. River Boats may post and maintain signs, at its own
expense, at three locations: (i)up to two (2) signs at the entrance
to Hidden Falls/Crosby Farm Park at the intersection of Shepard
Road and Crosby Farm Road; (ii) at the entrance to Watergate
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Marina as it leads ofP of Crosby Farm Road; and (iii) at the shore
line abutting the premises and visible from the parking location.
2. All proposed signage sha11 first be approved by the
City, as to size, content, and location, and must be approved by
the Minnesota Department of Transportation if necessary and
otherwise comply with all applicable federal, state, municipal and
local statutes, laws, ordinances and regulations. A11 progosed
signage shall comply with the requirements £ound in the Minnesota
Manual on Uniform Traffic Control Devices, Part II-I, §2I-a through
2I-7. The City agrees to provide specifications to River Boats to
assist it in complying with this provision within 15 days of the
execution of this agreement.
ARTICLE VI
INDEMNIFICATION
VI.1. River Boats aqrees to indemnify, defend, save and hald
harmless the City of St. Paul and any agents, officers and
employees thereof from any loss, injury, death, ar damages to
persons or property and all claims, demands, actions or causes of
action of whatsoever nature or character which may be suffered or
sustained by any person, or other legal entity who may at any time
be using, occupying, visiting or otherwise present on River Boats'
vessels, base of operations, or the premises, if the loss, injury,
death, or damages shall be caused by or in any way result from or
arise out af any act, omission, or negliqence of River Boats, its
owners, operators, employees, agents, or any visitors, passengers,
customers or any other person or legal entity present on the
premises, vessels, or base of operations.
VI.2. Furthermore, River Boats agrees to hold the City harmless
and indemnify it for any and all charges, penalties, or assessments
imposed for any violation of any laws, ordinances, or regulations
arising out of actions or omissions of River Boats or its agents,
operatars, or employees.
ARTICLE VII
LIABILITY COVERAGE
VII.1. In orde.r to honor its duty to indemnify the City, River
Boats shall provide, at its own expense, a general liability
insurance policy from an insurance carrier licensed to do business
in Minnesota in which the City shall be named a�� an additio��al
insured, which policy shall cover the entire term of this agreemeiit
and any edditional time during which River Boats may be located at
or operating from City property, and shall cover injury to persons
or property arising out of the operations or activities of River
Boats in amounts of not less than Three Hundred Thousand Dollars
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($300,000.00) where the claim is one for injury or death by
wrongful act or omission and Seven Hundred and Fifty Thousand
Dollars ($?50, 000.00) for any number of claims arising out oP a
single occurrence. If the maximum liability is modifiad by the
legislature, River Boats shall be required to provide coverage
adequate to cover up to the limits of the City's maximum liability.
VZI.2. To the extent that River Boats intends and desires to be
held privately responsible for claims up to Two Hundred Thousand
Dollars ($200,000.00), River Boats sha11 be allowed to self-insure
up to this amount, provided first that it maintains a general
liability golicy for claims sxceeding this amount up to the limits
addressed above and, further, that it maintains at all times a
certificate of deposit or treasury savings account as collateral in
the amount of self-insurance it decides to self insure itself for.
River Boats shall at all times guarantee and maintain the
certificate of deposit or treasury savings account in the full
amount of self-insurance provided pursuant to this agreement for
the purpose of satisfying any judgment against the City. Prior to
this agreement becoming effective, River Boats shall execute a
written agreement with a federally insured Bank or other financial
institution, lawfully doing business in the State of Minnesota, and
issuing the certifiaate of deposit or treasury savings account,
which requires the bank to notify, in writinq, the City of St. Paul
through its Manager of Special Services, Parks & Recreation
Divisian of St. Paul, at 300 City Hall Annex, 25 W. 4th Street, St.
Paul, MN 55162, not less than thirty (30) days before the
certificate of deposit or treasury savings account is transferred,
encumbered, posted as collateral for any other debt or obligation,
gifted, devised, or otherwise compromised. However, if there are
pending claims against the City, the agreement, shall provide that
there is to be no such transfer or other compromise of the
Certificate of Degosit or treasury savings account without first
obtaining the City's express written consent. Any transfer or
compromise of the Certificate of Deposit or treasury savings
account, without the City of St. Paul's express written consent,
will automatically work an immediate termination of this agreement.
River Boats shall exclusively be entitled to any interest earned on
said certificate of deposit or treasury savings account.
Concomitant with the duty to indemnify, River Boats also aqrees ta
apply the funds held as self-insurance to any claimant who secures
a judgment against River Boats or the City arising out of any claim
for damages in connection with River Boats operations, subject to
the terms of the obligation to indemnify. Furthermore, River Boats
expressly agrees to cooperate fully with the City in investigating
any and all claims for damages brought by the City or third
partie:.�. To this end, River 3oats agreas to provide the City with
any and all documents relating to any claims including, without
limitation, insurance forms, written reports, records of repairs or
damages, any and a12 statement of witnesses, photographs, drawings
or other related visual or audio recordings or depictions. River
Boats shall also make available its officers, employees and agents
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for oral interviews or depositions and shall timely comply with all
discovery requests.
ARTICLE V2II
ASSIGNMENT
VIII.1. River Boats shall not assign, transfer, sublet, pledge,
mortqage or otherwise transfer rights and responsibilities
(hereinafter referred to as an "assignment"), delegated to it under
this agreement to any third party; nor shall any assignment of the
rights and responsibilities designated to River Boats under this
agreement be effectuated by operation of law or otherwise, without
in each such case obtaining the prior written consent of the City,
which consent shall not be denied unless the City makes a good
faith fletermination that the proposed assignee lacks sufficient
financing or experience to assume ar maintain a passengar vessel
operation, has a felony criminal conviction in the past ten {10)
years, or otherwise has a history of past business practices or
experiences indicating unsuccessful ventures or poor business
practices or business judgment.
vIII.2. If River Boats desires to make an assignment, it shall
first notify the City of its desire to do so and shall submit in
writing to the City (i) the name of the proposed assignee, (ii) the
nature of the proposed assignee's business, (iii) a copy oP the
proposed assignment agreement and any other agreements to be
entered into concurrently with such assignment, including full
disclosure of all financial terms, and (iv) such financial
infarmation as the City may reasonably request concerning the
proposed Assignee. River Boats shall pay the City a reasonable fee
for the City's expenses, including attorneys' fees, in reviewing
such proposed assignment and in reviewing the proposed assignee's
financial ability to assume the agreement, said fee not to exceed
$500.00.
VIII.3. If, at any time during the term of this agreement, there
shall occur any change in the identity of any of the persons,
including Harry Euqene Cassidy, (excepting his immediate family),
presently having power to participate in or control the day to day
operations of the corporation River Boats, or any other change in
the corporate structure of River Boats, or the transfer or
alteration in the method of control or decision making regarding
River Boats, such change or alteration shall be deemed to be an
assignment. Any such change shall wo'rk an immediate termination of
this agreement unless such change is tirst approved by the City in
the manner provided above for other assignments.
ARTICLE IR
IMPRODEMENTS
Z%.1. River Boats shall be responsible for all costs incurred
in establishing and maintaining services to its operation,
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including site preparations and improvements and the establishment
or extension of any necessary water and electrical services from
existinq locations. Any proposed improvements shall first be
approved by the City. Site improvements shall be limited to those
necessary to qain access to the base of operations and vessels via
stairs, ramp, dock andJor gangplank. River Boats shall be entitled
to install no more than two vandal lights, without prior written
consent of the City. The kind and quality of said lights sha11 be
first approved by the Manager of Watergate Marina and s/he may
refuse any lights which s/he reasonably believes would interfere
with the enjoyment of other slip lessees. The City will permit
River Boats to obtain water from Waterqate Marina via the use of
hoses for the vessels and base of operations.
IB.2. All site improvements and extension or establishment of
services shall comply with all applicable federal, state, county
and local laws, regulation, ordinances or other lawful requirements
or limitations. Al1 improvements and extensions shall be done in
an orderly and workmanlike manner and shall not materially alter
the appearance of or limit access to Watergate Marina. River Boats
shall be required, at the City's option, to remove any and all
improvements upon termination.
I%.3. River Boats shall bear the cost and shall fully and
promptly pay Por all gas, heat, light, power, telephone service,
and other public utilities of every kind furnished to the premises,
with the exception of water used via hoses, throughout the term of
this agreement.
IX.4. Should the City expand Watergate Marina or alter its
configuration so as to displace River Soats' location of operations
the City shall bear all costs in relocating, including the
extension of necessary services to River Boats within Watergate
Marina at a location acceptable to both parties.
ARTICLE X
TERMINATION
R.1. If either party shall fail or neglect to observe, keep,
or perform any of the terms, conditions, requirements or
obligations contained in this agreement on its part to be observed,
kept or performed, and the default shall continue for a period of
thirty (30) days following delivery of written notice specifically
describing the alleged default and a demand that it be cured, then
the party not in dafault shall have the right at its option, on
written notice, delivered to the defaulting party, to terminate
this agreemsnt, effective�immediately. If eithEr party fails or
neglects to observe, keep or perform any of the tarms, conditions,
requirements or obligations contained in the aqreement on its part
to be observed, kept or performed, on two (2) or more separate
occasions, then the party not in default shall have the right, at _
its option, on written notice, delivered to the defaulting party,
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to terminate this agreement, effective immediately, regardless of
whether or not either or both of the breaches have been cured.
x.2. Upon termination of the agreement, in the manner provided
in Article X.1, River Boats shall vacate the premises within sixty
(60) days. If River Boats fails to timely vacate, the City may,
without further notice to River Boats, have the right immediately
to enter and take possession of the premises with or without
process of law and to remove all of River Boats property and
improvements from the premises and all persons occupying the
premises and to use all necessary force therefor and in all
respects to take the actual, full, and exclusive possession of the
premises without incurring any liability to River Boats due to
repossession. Zn furtherance of any repossession, the City may
have the base of operations, barge, and vessels removed £rom the
premises. Furthermore, the City shall be entitled to Percentage
Payments accrued up to the date of repossession. If it is later
determined by a court of competent jurisdiction that there was no
basis for termination resulting in the exercise of the City's
rights under this paragraph than the City will be responsible for
damages resulting from any repossession, as provided for by law.
5.3. With the exception of removable docks and improvements to
vessels, upon termination of this agreement the City shall become
the owner of any and all improvements made to the premises and
River Boats is prohibited from removing or destroying any such
improvements.
%.4. Termination of this agreement, in the method provided
for, shall not operate as a bar to any other lawful action or
process available to either party.
X.S. The City, at its expense, shall promptly remove any
navigational obstructions such as cable, pipes, stumps and other
debris along the West shore of the harbor, which interfere with the
navigation or mooring of River Boats' vessels in the harbor.
%.6. The City shall be responsible for designating the
original and any subsequent placements and locations of the River
Boat's vessels and base of operations. River Boats shall bear the
cost of the original placement and location, subject to Article
I2.3, above.
ARTICLE XI
ADDITIONAL PROVISIONS �
%I.1. waiver: A waiver by either party of any breach of this
agreem��nt is not a waiver of any other or subsequent breach of this
agreement.
XI.3. Attorneys' Fees: In the event that any action is filed
in relation to this agreement, the_unsuccessful party in the action
sha11 pay to the successful party, in addition to all the sums that
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either garty may be caZied on to pay, a reasonable sum for the
success£ul party's attorney fees. This provision does not apply to
legal fees for outside counsel who represent the City.
%2.4. Entire Agzeement: This agreement constitutes the entire
aqreement between the parties. No representatians, warranties,
undertakings, or promises, whether oral, implied, written, or
otherwise, have been made by either party hereto to the other
unless expressly stated in this agreement or unless reduced to an
amendment executed in the fashion provided for below.
SI.S. Amendments: Any amendments or modifications to this
agreement shall be in writing, shall be attached to and made a part
of this agreement, and sha11, if necessary, be first approved, as
to form, by the St. Paul City Attorney's Office and executed by the
same parties who executed the original agreement, or their
authorized representatives.
%I.6. No Partnership, Joint Venture, or Fiduciary Relationship
Created Hereby: Nothing contained in this agreement shall be
interpreted as creating a partnership, jaint venture, or
relationship of prinaipal and aqent between the City and River
Boats. River Boats is prohibited from expressing or implying any
suah relationship or using any City of St. Paul logos in any
advertisements, brochures or other medium.
%I.7. severable Provisions: Each provision, section, sentence,
clause, phrase, and word of this agreement is intended to be
severable. If any provision, section, sentence, clause, phrase,
and word hereof is illegal or invalid for any reason whatsoever,
such illegality or invalidity shall not affect the legality or
validity of the remainder of this agreement.
XI.B. Eminent Domain: If the premises or any part thereof, or
any abutting property resulting in lack of access to the premises,
are taken by virtue of eminent domain, this agreement shall
terminate on the date title vests pursuant to the taking. Nothing
herein sha11 in any way abrogate River Boats' rights with respect
to eminent domain, including the right to just compensation, if
any, in the event of a taking.
%I.9. Captions: All captions, headings, or titles in the
articles, paragraphs or sections of this agreement are inserted for
convenience of reference only and shall not constitute a part of
this agreement as a limitation of the scope of the particular
paragraphs or sections to which they apply.
� �
%I.10. Force Majeure: This aqreement shall automaticaZly
terminate upon any act of God, civil riot or disturbance, war, or
natural ealamity which renders the premises or either party
incapable of performing their obligations under this agreement. If
the Force Majeure event is temporary in nature, such event shall
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act to suspend, rather than terminate performance.
IN WITNESS WHEREOF, the parties hereto have signed this
agreement the day and year first above written.
APPROVED AS TO FORM:
Assistant City Attorney
River Boats Inc.
B . ri�.2t�tG ,
ITS • ` �
CITY OF SAII3T PAUL
Mayor, City of St. Paul
Director, Finahce & Management
Services
City Clerk
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