Loading...
98-811Council File # p� O ��. � 1 t � �i f ��� RESOLUTION CITY OF SAINT PAUL, MINNESOTA Green Sheet # Sp��i�'� Presented By Referred to Committee: Date 1 WHSREAS, Riverboats Inc. desires to operate a floating restaurant 2 on the vessel known as the ReJoyce at Harriet Island Park owned 3 and operated by the City of Saint Pau1, and; 4 WHEREAS, the City recognizes that this operation would provide a 5 benefit to the public by expanding opportunities for the 6 enjoyment of the Mississippi River and the City of Saint Paul's 7 riverfront environment, and; 8 WHEREAS, entering into this lease is part of the settlement of 9 the law suit filed by Riverboats Inc. against the City of Saint 16 Paul and Robert P. Piram, Superintendent of Parks and Recreation, 11 and; 12 NOW THEREFORE BE IT RESOLVED, that the proper City officials are 13 hereby directed and authorized to enter into the attached 14 agre4ement with Riverboats Inc. Requested by: Adopted by Council: Date c � ` �,��, T ,_� - � l Adoption Certified by Covncil Secretary By Ap� � �G ➢ivisio Parks a eation � � V� Y, Form Approved by City Attorney Parks and Recreation CONfACT P£qSON AND PHONE Vic Wittgenstein (226-6409) MUST BE ON COIINCIL AGENDA BY (DA7� ASAP DATE INITIAiED July 30, 1998 -�\ A551 Y NUM9ERF0� ROIITING OPAER TOTAL; OF SIGNA'fURE PAGES_ ICLIP ALL LOCATIDNS PoR SIGNANRE) ACTION REpUE5iED: GREEN SHEET INRIAVOATE � DEPARTMENiD1RECTDR ? CITY ATfORNEY _FINANQAL SEF2VICE5 OIR. 3 MAYOR (OR A5515 NT) r S i / 9$•8�1 u ( N0.62733 INTAL/�ATE 4 CRV COUNCIL 5 Parks & Recreation Signatures of the Superintendent of Parks and Recreation, City Attorney, and the Mayor and passage of the attached Council Resolution by the City Council. RECOMMEN�ATIONS: Approve (A) or Rejec[ (R� _PLANNING COMMISSION __CNIL SERVICE COMMISSION _cB Cad1MlTTEE _ A 5fAFF _ DISTRIC7 COUNqL 54PPORTS WHfCH COUNQI QBJECTIVE? INITIATING PR08LEM, ISSUE, OPP�RTUNI7Y (Who, Whai, When, Wkare, tMry�: PERSQNAL SERVICE CONTRACTS M115T ANSWER TNE FOLLOW WG QUESTIONS: L Has this person/frtm ever worketl u�de� 2 Con[rac[ tor [his Gepartment? YES NO 2. Has Nis persoNfirm ever been a c�ty employee? YES NO 3. Does this personRnm possess a sfall no[ normalty possesseC by any cmrent ciry employse? YES NO ExWein ell yes answem on agpa�ata sheet antl attach to 8�ean sheet. Riverboats Inc. has proposed operating a floating restaurant using the vessel Rejoyce at Harriet Island Park on ihe public dock. ����� �lUG 0 3 ADVAMAGES IF APPROVE�: Y�'� OF�tC� The pubiic wi11 have the opportunity to enjoy food and beverages on the boat which will be located adjacent to the City's public dock at Harriet Island. OISA�VANTAGES IF APPROVED: None ISADVANTAGES IF NOT APPROVED: he faw suit against the City wifl go forward. Gaunc'st t;esear�� �°�t2r i . � �. �x��+� t'AL AMOUNT OF TRANSAGTION � �L,4OO 'F �DINGSOURCE Concessions Other COST/REYENUE BUD(iETED (CIRCLE ONE) YES ND ACTNITY NUMBER 23123 NCIAl1NFORMATbN: (E%PIAIM Riverboats Inc. shall pay the City $2,400 annuaily aga+nst a percentage of gross sales as lined on page 3 of the agreement. 7 ,. q g .�tt AGREEMENT This Agreement is made and executed on this day of , 1498, by and between the City of Saint Paul, hereinafter referred to as the "City" and River Boats, Inc., hereinafter refened to as"River Boats." ARTICLE I RECITALS WHEREAS, River Boats desires to operate a floating restaurant on the Vessel know as the ReJoyce at Harriet Island Pazk owned and operated by the City of Saint Paul, and; WHEREAS, the City recognizes that this operation would provide a benefit to the public by expanding opporhuiities for the enjoyment of the Mississippi River and the City of Saint Paul's riverfront environment. NOW, THEREFORE, in consideration of the promises and mutual covenants herein contained, it is agreed as follows: ARTICLE II LOCATION AND RELOCATION II.1. The City hereby grants to River Boats the privilege of operating a floating restaurant adjacent to the City's public dock, located in Harriet Island Pazk at the specific site identified on E�ibit A attached hereto on the vessel currenfly known as the ReJoyce. The ReJoyce shail be located within 1Q to 15 feet of the location depicted on E�ibit A. II.2. That the boat housing the floating restaurant must be abie to anchor itself and not need to use the public dock for any weight bearing tie-up purpose. II.3. River Boats' customers and personnel shall be able to use the public dock for ingress and egress into the floating restaurant. II.4. That in cases of emergency or disaster such as flood or other natural act, River Boats will vacate its location adjacent to the public dock if directed to do so hy the City's Superintendent of Pazks and Recreation, Fire Chief, Police Chief or other City official delegated such power due to the emergency. The cost of this relocation shall be borne by River Boats. Further, River Boats will make no claim against the City for lost business or added expenses due to this temporary relocation unless the Cit�� was responsible in whole or in part for the need to relocate. � II.S. That the City and IZiver Boats acknowledge that construction projects in the Mississippi River areas may be ongoing during the term of this Agreement and agree to cooperate with each other if the construction causes the enterprise to be moved to a aa .$4� different location temporarily. Such new location shall be as accessible as the original location, as is reasonably possibie and sha11 be made at the City's cost. TI.6. If it is necessary to permanendy relocate the restaurant from the original location, the City sha11 at all times determine the new site of the restaurant at Harriet Island subject to River BoaYs approvai. The parties shall negotiate in good faith for an altemate location. If it is the City that causes the move, the City sha11 pay for the relocation. In all other cases any relocation costs shall be borne by River Boats. AI2TICLE III TERM OF THE AGREEMENT III1. The term of this Agreement shall be fifteen (15) years. It shall commence upon the commencement of the floating restaurant's operations and shall continue for fifteen (15) years. The term shall end on December 31st of the fifteenth year. For example, if the restaurant commences operations in 1999, this Agreement would terminate on December 31, 2013. III2. River Boats may commence operations any time after the renovation is comgleted as required in Article V.2., but shall commence operation of the restaurant no later than July 1, 1999. III.3. Provided there are no uncured defaults of this Agreement, the Ciry agrees to enter into good faith negotiations for renewal of the Agreement at the end of the fifteen- year term. ARTICLE IV SITE MAINTENANCE IV.1. The City shall use its best efforts to maintain and keep the park area in, about and adjacent to the area from which the enterprise will operate, clear of refuse, rubbish and miscellaneous unsightly storage. ARTICLE V RENOVATION-CONSTRUCTION V.i. The City recognizes that extensive renovation and construction is required to make the ReJoyce suitable to operate as a restaurant. V.2. River Boats agrees � renovate the ReJoyce prior to locating the vessel at Harriet Island. The renovation sha11 be complete no later than July i, 1999. V3. The renovation work identified in part V.2. shall be performed at a location at the harbor by the NSP Plant or under the "High Bridge" at the site depicted on E�ibit B - 2 q�' � whichever is more feasible and the City wi11 make available to River Boats at no charge for use by River Boats to renovate the Re3oyce. V.4. The renovation work identified in part V.2. shall be completed prior the ReJoyce being relocated to the Harriet Island site and that the boat shall be open for business within two weeks of its move to f�arriet Island, with only minimal installation of equipment and supplies such as tables and chairs to be accomplished unless othenvise agreed to in writing between River Boats and the City. V.S. All costs of Yhis renovarion, including utilities, shall be the responsibility of River Boats. ARTICLE VI PAYMENTS AND REPORTING REQUIREMENTS VI1. River Boats shall pay the City the greater of the following: a. $2,400 or minimum flat fee per year; or (1) 1.75% of gross revenues generated by the restaurant over $35Q,000 for the first two years of operation; (2) 2.0% of the gross revenues generated by the restaurant over $350,000 for years three through eight; and (3) 2.5% of the gross revenues generated by the restaurant over $350,000 for years nine through Fifteen. VI.2. The minimum flat fee per year shall be paid by River Boats to the City as follows: a. $1,2(?0 on July 1 st of each year of this Agreement; $1,200 on October lst of each year of this Agreement; and c. Any percentage payment due the City from the previous year by February 15th of each yeaz. VI.3. River Boats shall keep at the floating restaurant, or at 495 Kenny Road, St. Paul, Minnesota or at its current principal place of business, a permanent accurate set of books and records which will accurately reflect and permit the deternunation and verification of the amounts due the City of Saint Paul under the Agreement. Such books, records and accounts shall be available for inspection by the City between the hours of 9:00 a.m. and 5:00 p.m., Monday through Friday, inclusive by any duly authorized agent of the City, at times of restaurant business operation. G�� -81� V.4. On or before the fifteenth day of February of each calendar year under this A�reement, River Boats shall submit to the City a statement, in duplicate, showing the total gross revenue received from the operation of the restaurant for the preceding year. The statement to be submitted shall be in such form and contain such detail as may be necessary to adequately account to the City in accordance with generally accepted accounting principles, for the payments due under this Agreement. ARTICLE VII OPERATIONS VII.1. The restaurant must contain a sit down dinner element but may also contain a fast food element. It is anticipated that the restaurant will be open to the generai public with a family oriented ambience primarily offering a casual dining experience that wi11 serve patrons who arrive from land and water. While the restaurant will attempt to attract families, service is availabie to all people who wish to frequent the facility. There will be a particulaz focus on serving patrons who aze visiting Harriet Island and the waterfront. VIT.2. River Boats shall operate the entergrise in a manner which will be a credit to the City of Saint Paul. a. The facility housing the enterprise shail be kept in good repair both inside and out. Painting will be done, as needed, in a timely manner. b. The outside of the enterprise shall be kept free of trash and debris. c. On-land facilities and azeas which support the enterpxise, shall be kept in a clean condition. d. Customers, guests and generai public shall be treated in a polite, sensitive and customer friendly manner. VII3. The restaurantlocated on the public dock is intended to serve the users of Harriet Isiand Park, therefore off-site catering by the facility shall account for no more than 15% of its annual sales. VII.4. The operating hours of the floating restaurant shall be no earlier than 6:00 a.m. or later than the hours of Harriet Is1and Park, which is cunently 11:00 p.m. VILS. River Boats may erect signage to advertise and identify its enterprise. Such signage shall be submitted to the City for approval for content and location prior to it being erected. ` VII.6. The patrons of the floating restaurant shall park their vehicles at a location determined by the City. The patrons of River Boats shall have access to public parking adjacent to the public dock. It is understood that the exact location of the parking has not been determined and is dependent upon the final design of Harriet Island. The City shall qg-�'il have the right to dictate altemate pazking locations that are reasonably close to the public dock. ARTICLE VIII DEFAULT AND CURE VIII.1. If River Boats faiis to comply with any material term of this Agreement, the City shall have the option to declaze this Agreement in default. If the City chooses to declaze this Agreement in default for a breach by River Boats, it sha11 provide written notification of the breach by registered mail. If River Boats does not cure the breach within thirty (30) days of receiving the written notice, the City shall have the right to terminate this Agreement after the 30 days expires or to bring an action in a court of law. VIII.2. If the City fails to comply with any material term of this Agreement, River Boats shall have the option to declare this Agreement in default. If the River Boats chooses to declaze this Agreement in default for a breach by the Ciry, it sha11 provide written notification of the breach by registered mail. If the City does not cure the breach within thirty (30) days of receiving the written notice River Boats sha11 have the right to terminate this Agreement after the 30 days expires or to bring an action in a court of law. ARTICLE IX TERMINATION IX1. This agreement shall automatically terminate at the end of the fifteenth year term unless the parties agree in writing to extend it. IX.2. If River Boats or another party as outlined in Articie V,2. fails to commence operation of the restaurant by 7uly 1, 1999, this Agreement shall automatically be terminated unless: a. The inability to commence operations by July 1, 1999 was caused in whole or in part by actions or omissions of the City; or b. The City agrees in writing to pernut a later opening date; or c. The failure to commence operations is the result of events out of the control of River Boats such as labor disputes, acts of Csod or other events listed in Article XVI3. � IX.3. If this Agreement is terminated by the City for failure to open by July 1, 1999, River Boats wiil make no ciairn against the Ciry due to River Boats' failure to implement its restaurant operation unless the City's conduct has prevented it from opening. 5 �g.�'11 IX.4. Notwithstanding any other provision herein, this Agreement sha11 automatically terminate without the tight to cure upon the occurrence of any of the events described below: a. A petition by or against River Boats under the bankruptcy laws af the United States, which perition is not dismissed within ninety (90) days from the date of such filing; and b. The assignment by River Boats of its assets for the benefit of creditors under any state insolvency laws. IX.S. Upon terniination of this Agreement River Boats shali vacate the location used by the enterprise and shall leave the premises in as good condition and order as they were at the time they were accepted, ordinary and reasonable use and damage by the elements excepted. ARTICLE X SUB-LEASE OR SALE X.1. That the restaurant may be self-operated by River Boats, or by another entity or person with the approval of the City. X.2. If River Boats sub-leases, assigns or transfers this Agreement to a third- party, 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 third-party; (ii) the nature of the proposed assignee's business; (iii) the proposed agreement and any other agreements to be entered into concurrently with such third-party, including full disclosure of all financiai terms; and (iv) such financial information as the Ciry may reasonably request conceming the proposed third-pariy. River Boats shall pay the City a reasonable fee for the City's expenses, including attorneys' fees, in reviewing such proposed sublease or transfer and in reviewing the proposed third-party's financial ability to assume the Agreement, said fee not to exceed $500.00. X.3. If there is a sub-lease or sale to any other party(ies), the other party(ies) and River Boats shall submit to the City their plans for the operarion of the floating restaurant. This plan must include: operating schedule, menu(s), any entertainxnent plans, financial structure and references in the case of a sale or lease, management structure and any plans to remodel/redesign the boat. This shall occur before any sale or lease is completed. X.4. In the event of a sub-lease of the floating restaurant operation, River Boats will remain responsible for the terms of this Agreement unless released in writing by the City. X.S. In the event of a sale or assignment of the floating restaurant operation the new owner(s) shall be responsible to comply with all the terms of this Agreement. � ARTICLE XI COMPLIANCE WITH LAW XI.1. River Boats, its personal representatives, successors in interest and assigns, as a part of the consideration hereof, do hereby promise, covenant and agree, that a. No person, on the ground of race, sex, sexual or affectional orientation, color, creed, religion, age, disability, familial status, marital status, status with respect to public assistance or national origin or ancestry sha11 be excluded from participating in, be denied the benefits of or be othervise subjected to discrimination in the use of said facilities. b. No discrimination sha11 be practiced in the selection of employees and contractors, by contractors in the selection and retention of first tier subcontractors, and by first-tier subcontractors in the selection and retention of second-tier subcontractors. c. Such discrimination shall not be practiced against the public in its access in and use of the facllities and services provided for pubiic accommodations (such as eating, rest and recreation) constructed or operated on the floating restaurant, and; d. River Boats shall use the premises in compliance with all other requirements unposed pursuant to the Saint Paul Legislative Code Chapter 183. XI.2. River Boats shail keep and observe all the laws and ordinances relating to said premises and the care and use thereoE In regazds to the above, River Boats sha11 be responsible to obtain and keep current any Iicenses and permits needed to operate the facility. ARTICLE XII UTILITIES AND MATNTEPIANCE XILl. Any ongoing operations or maintenance expenses shall be River Boats' responsibility. XII.2. River Boats shall pay a11 utiliry hook-up and usage costs associated with their enterprise. This includes: water, electrical, gas, sewer, telephone, cable television and any other such service. River Boats is responsible for all costs associated with utility dock and shore modifications necessary to accommodate its proposal so long as the location of the restaurant is at the location identit:�,d on Ea�hibit A. Aowever, at the location on Exhibit A on the public dock, there aze presently utility hookups that River Boats shall be permitted to connect to. This provision is subject to Article II.S. XII3. River Boats shail dispose of ail rubbish and refuse generated in connection with its operation at its cost but shali not be responsible for the upkeep, maintenance or qp-t1l repair of park property used in connection with the entetprise. The City shall provide a location at no cost for River Boats to place a trash dumpster adjacent to the pazking azea in which to dispose of its rubbish and refuse. ARTICLE XIII INDEMINIFICATION XIII.1 That River Boats hereby agrees to hold the City and all of its officers, agents and employees hannless and indemnified from and against any penalty, damage or chazge imposed for any violation of laws or ordinances that aze occasioned by the negligence of River Boats or those hoiding or operating under River Boats. In addition thereto, River Boats hereby agrees to hold harmless and indemnify the City, its officers, agents and employees from and against all loss, cost, damage or expense arising or growing out of any accident or other occurrence in connection with the operation by River Boats on or about the premises used by River Boats pursuant to the privileges granted hereunder which may cause injury to any person or property. ARTICLE XIV INSURANCE XIV.1. As additional asswance of such indemnification, but not in lieu thereof, River Boats shall obtain and pay the premiums upon a generai liability insurance policy(ies) which wiil name the City as an additional insured. Such policy(ies) shall cover injury to persons or property azising out of the operation of River Boats business with limits of not less than $50,000 with respect to property loss, $300,OOQ with respect to injury or death to any one person and $750,000 for any number of ciaims azising out of a single occurrence. If the maYimum liability is modified by the legislature, River Boats shall be required to provide coverage adequate to cover up to the limits of the City's maacimum liabiliry. The policy(ies) of insurance shali be submitted to the City Attorney for the City for approval and shali be filed with the Departrnent of Finance and Management Services prior to the execution of this Agreement. Such insurance policy(ies) shall be kept in force during the entire period that this Agreement or any renewal thereof is in effect and shall contain a provision which will not permit cancellation without 30 days prior written notice to the City. XIV.2. That in the event that River Boats detemunes to se11 beer and/or wine or liquor, River Boats shall provide a liquor liability insurance policy which names the City as an additional insured in limits required by State law. The insurance policy(ies) shali be filed with the Department of Finance and Management Services prior to the serving of beer andlor wine or liquor by River Boats. Such insurance policy(ies) shall be kept in force during the entire period that this Agreement or any renewal thereof is in effect and shall contain a provision which will not pertnit cancellation without 30 days prior written notice to the City. XIV.3. 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 � a � ^�� 1 shall be allowed to self-insure up to this amount, provided first that it maintains a general liability policy for claims exceeding this amount up to the limits addressed above and, further, that it maintains at all times a certificate of deposit 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 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 shail execute a written agreement with a federaily insured Bank or other financial institution, lawfully doing business in the State of Minnesota, and issuing the certificate of deposit, which requires the bank to notify, in writing, the City of St. Paul through its Manager of Special5ervices, Parks & Recreation Bivision of St. Paul, at 300 City Hall Annex, 25 West Fourth Street, St. Paul, MN 55102, not less than thirty (30) days before the certificate of deposit is transferred, encumbered, posted as collateral for any other debt or obiigation, gifted, devised, or othenvise 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 Deposit without first obtaining the City's express written consent. Any transfer or compromise of the Certificate of Deposit, without the City of St. PauPs 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. Concomitant with the duty to indemnify, River Boats also agrees to 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 cQnnection 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 parties. To this end, River Boats agrees to provide the City with any and all documents relating to any claims including, �vithout limitation, insurance forms, written reports, records of repairs or damages, any and all 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 for oral interviews or depositions and shall timely comply with all discovery requests. ARTICLE XV CITY EVENTS AND CON5TRUCTION XV.1. That the City will not be responsible for lack of revenue due to construction projects in proxunity to the floating restaurant. XV.2. The City' shali have the right to produce special events in Harriet Island Pazk that may negatively impact the floating restaurant, but shall use its best efforts to produce the events in such a way as to minimize any access or financial loss to the floating restaurant. � L•] a�-��1 ARTICLE XVI ADDITIONAL PROVISIONS XVI.1. Settlement: This Agreement, the River Boats Agreement at Watergate Marina and the Settlement Agreement in River Boats. Inc. v. The Citv of Saint Paul and Robert P. Piram, File No. 3-95-517 satisfy all claims, causes of action and controversies brought forwazd by River Boats against the Ciry. This provision sha11 survive any termination of this Agreement. XVI.2. Waiver: River Boats will make no claim and waives any right against the City on account of any loss or damage by fire, water, windstorm, floods, freezing, gas, electric wires and other acts of God affecting its property in connection with its operation unless contributed to by the City's negligence. XVI3. Force Majure: The failure of performance or delays by either party shall be excused if caused by or if arising out of acts of God, strikes, labor disputes, acts of the public enemy, wars, riots, floods, storms, material shortages, act of State or Federal government and any other causes whether similaz or dissimilar, which are not reasonably within the control of the party clauning Force Majeure. XVI.4. No Exclusivity: No provisions of this Agreement may be construed as giving River Boats exclusive rights to this type of enterprise or any other enterprise in that portion of the river where the enterprise is located. The City sha11 have the right to evaluate and place other business ventures within the proximity of River Boats. XVI.S. Notices: All notices pertaining to this Agreement shall be in writing and shall be sufficiently given if personally delivered or sent by registered mail (date of receipt to control) to City: Robert P. Piram Superintendent of Parks and Recreation 25 West Fourth Street, Room 300 Saint Paul, Minnesota 55102 to River Boats: Gene Cassidy River Boats, Inc. 495 Kenny Road Saint Paul, Minnesota 55101 The above addresses ar persons to whom notice may be delivered or sent may be changed from time to time by notice under this Agreement. XVI.6. Independent Contractor: The parties hereto agree that they aze acting as independent contractors and that nothing in this Agreement is intended to create, nor shall 10 � � -t�'11 anything herein be construed or interpreted as creating a partnetship between the City and River Boats except as expressly agreed to herein. Each party shall be responsible for its own sepatate debts, obligations and other liabilities. XVI.7. Severability: If any provision of this Agreement shall be declazed invalid for any reason and such provision does not destroy the objects and purposes of this Agreement or make unfeasible the performance of the remaining terms and conditions of this Agreement, such provision shall be deemed severable and the remaining terms and provisions of this Agreement shall be enforced in accordance with their terms. IN WITNESS WHEREOF, the parties hereto have hereunto set their hands to this Agreement as of the day and year first above written. APPROVED AS TO FORM: Assistant City Attorney FOR RIVER BOATS, INC.: � � H. Eugen assidy Its Chief Executive Officer CITY OF SAINT PAUL: The Honorable Norm Coleman, Mayor Robert P. Piram, Superintendent of Parks and Recreation Director, Department of Finance and Management Services City Clerk 11 Council File # p� O ��. � 1 t � �i f ��� RESOLUTION CITY OF SAINT PAUL, MINNESOTA Green Sheet # Sp��i�'� Presented By Referred to Committee: Date 1 WHSREAS, Riverboats Inc. desires to operate a floating restaurant 2 on the vessel known as the ReJoyce at Harriet Island Park owned 3 and operated by the City of Saint Pau1, and; 4 WHEREAS, the City recognizes that this operation would provide a 5 benefit to the public by expanding opportunities for the 6 enjoyment of the Mississippi River and the City of Saint Paul's 7 riverfront environment, and; 8 WHEREAS, entering into this lease is part of the settlement of 9 the law suit filed by Riverboats Inc. against the City of Saint 16 Paul and Robert P. Piram, Superintendent of Parks and Recreation, 11 and; 12 NOW THEREFORE BE IT RESOLVED, that the proper City officials are 13 hereby directed and authorized to enter into the attached 14 agre4ement with Riverboats Inc. Requested by: Adopted by Council: Date c � ` �,��, T ,_� - � l Adoption Certified by Covncil Secretary By Ap� � �G ➢ivisio Parks a eation � � V� Y, Form Approved by City Attorney Parks and Recreation CONfACT P£qSON AND PHONE Vic Wittgenstein (226-6409) MUST BE ON COIINCIL AGENDA BY (DA7� ASAP DATE INITIAiED July 30, 1998 -�\ A551 Y NUM9ERF0� ROIITING OPAER TOTAL; OF SIGNA'fURE PAGES_ ICLIP ALL LOCATIDNS PoR SIGNANRE) ACTION REpUE5iED: GREEN SHEET INRIAVOATE � DEPARTMENiD1RECTDR ? CITY ATfORNEY _FINANQAL SEF2VICE5 OIR. 3 MAYOR (OR A5515 NT) r S i / 9$•8�1 u ( N0.62733 INTAL/�ATE 4 CRV COUNCIL 5 Parks & Recreation Signatures of the Superintendent of Parks and Recreation, City Attorney, and the Mayor and passage of the attached Council Resolution by the City Council. RECOMMEN�ATIONS: Approve (A) or Rejec[ (R� _PLANNING COMMISSION __CNIL SERVICE COMMISSION _cB Cad1MlTTEE _ A 5fAFF _ DISTRIC7 COUNqL 54PPORTS WHfCH COUNQI QBJECTIVE? INITIATING PR08LEM, ISSUE, OPP�RTUNI7Y (Who, Whai, When, Wkare, tMry�: PERSQNAL SERVICE CONTRACTS M115T ANSWER TNE FOLLOW WG QUESTIONS: L Has this person/frtm ever worketl u�de� 2 Con[rac[ tor [his Gepartment? YES NO 2. Has Nis persoNfirm ever been a c�ty employee? YES NO 3. Does this personRnm possess a sfall no[ normalty possesseC by any cmrent ciry employse? YES NO ExWein ell yes answem on agpa�ata sheet antl attach to 8�ean sheet. Riverboats Inc. has proposed operating a floating restaurant using the vessel Rejoyce at Harriet Island Park on ihe public dock. ����� �lUG 0 3 ADVAMAGES IF APPROVE�: Y�'� OF�tC� The pubiic wi11 have the opportunity to enjoy food and beverages on the boat which will be located adjacent to the City's public dock at Harriet Island. OISA�VANTAGES IF APPROVED: None ISADVANTAGES IF NOT APPROVED: he faw suit against the City wifl go forward. Gaunc'st t;esear�� �°�t2r i . � �. �x��+� t'AL AMOUNT OF TRANSAGTION � �L,4OO 'F �DINGSOURCE Concessions Other COST/REYENUE BUD(iETED (CIRCLE ONE) YES ND ACTNITY NUMBER 23123 NCIAl1NFORMATbN: (E%PIAIM Riverboats Inc. shall pay the City $2,400 annuaily aga+nst a percentage of gross sales as lined on page 3 of the agreement. 7 ,. q g .�tt AGREEMENT This Agreement is made and executed on this day of , 1498, by and between the City of Saint Paul, hereinafter referred to as the "City" and River Boats, Inc., hereinafter refened to as"River Boats." ARTICLE I RECITALS WHEREAS, River Boats desires to operate a floating restaurant on the Vessel know as the ReJoyce at Harriet Island Pazk owned and operated by the City of Saint Paul, and; WHEREAS, the City recognizes that this operation would provide a benefit to the public by expanding opporhuiities for the enjoyment of the Mississippi River and the City of Saint Paul's riverfront environment. NOW, THEREFORE, in consideration of the promises and mutual covenants herein contained, it is agreed as follows: ARTICLE II LOCATION AND RELOCATION II.1. The City hereby grants to River Boats the privilege of operating a floating restaurant adjacent to the City's public dock, located in Harriet Island Pazk at the specific site identified on E�ibit A attached hereto on the vessel currenfly known as the ReJoyce. The ReJoyce shail be located within 1Q to 15 feet of the location depicted on E�ibit A. II.2. That the boat housing the floating restaurant must be abie to anchor itself and not need to use the public dock for any weight bearing tie-up purpose. II.3. River Boats' customers and personnel shall be able to use the public dock for ingress and egress into the floating restaurant. II.4. That in cases of emergency or disaster such as flood or other natural act, River Boats will vacate its location adjacent to the public dock if directed to do so hy the City's Superintendent of Pazks and Recreation, Fire Chief, Police Chief or other City official delegated such power due to the emergency. The cost of this relocation shall be borne by River Boats. Further, River Boats will make no claim against the City for lost business or added expenses due to this temporary relocation unless the Cit�� was responsible in whole or in part for the need to relocate. � II.S. That the City and IZiver Boats acknowledge that construction projects in the Mississippi River areas may be ongoing during the term of this Agreement and agree to cooperate with each other if the construction causes the enterprise to be moved to a aa .$4� different location temporarily. Such new location shall be as accessible as the original location, as is reasonably possibie and sha11 be made at the City's cost. TI.6. If it is necessary to permanendy relocate the restaurant from the original location, the City sha11 at all times determine the new site of the restaurant at Harriet Island subject to River BoaYs approvai. The parties shall negotiate in good faith for an altemate location. If it is the City that causes the move, the City sha11 pay for the relocation. In all other cases any relocation costs shall be borne by River Boats. AI2TICLE III TERM OF THE AGREEMENT III1. The term of this Agreement shall be fifteen (15) years. It shall commence upon the commencement of the floating restaurant's operations and shall continue for fifteen (15) years. The term shall end on December 31st of the fifteenth year. For example, if the restaurant commences operations in 1999, this Agreement would terminate on December 31, 2013. III2. River Boats may commence operations any time after the renovation is comgleted as required in Article V.2., but shall commence operation of the restaurant no later than July 1, 1999. III.3. Provided there are no uncured defaults of this Agreement, the Ciry agrees to enter into good faith negotiations for renewal of the Agreement at the end of the fifteen- year term. ARTICLE IV SITE MAINTENANCE IV.1. The City shall use its best efforts to maintain and keep the park area in, about and adjacent to the area from which the enterprise will operate, clear of refuse, rubbish and miscellaneous unsightly storage. ARTICLE V RENOVATION-CONSTRUCTION V.i. The City recognizes that extensive renovation and construction is required to make the ReJoyce suitable to operate as a restaurant. V.2. River Boats agrees � renovate the ReJoyce prior to locating the vessel at Harriet Island. The renovation sha11 be complete no later than July i, 1999. V3. The renovation work identified in part V.2. shall be performed at a location at the harbor by the NSP Plant or under the "High Bridge" at the site depicted on E�ibit B - 2 q�' � whichever is more feasible and the City wi11 make available to River Boats at no charge for use by River Boats to renovate the Re3oyce. V.4. The renovation work identified in part V.2. shall be completed prior the ReJoyce being relocated to the Harriet Island site and that the boat shall be open for business within two weeks of its move to f�arriet Island, with only minimal installation of equipment and supplies such as tables and chairs to be accomplished unless othenvise agreed to in writing between River Boats and the City. V.S. All costs of Yhis renovarion, including utilities, shall be the responsibility of River Boats. ARTICLE VI PAYMENTS AND REPORTING REQUIREMENTS VI1. River Boats shall pay the City the greater of the following: a. $2,400 or minimum flat fee per year; or (1) 1.75% of gross revenues generated by the restaurant over $35Q,000 for the first two years of operation; (2) 2.0% of the gross revenues generated by the restaurant over $350,000 for years three through eight; and (3) 2.5% of the gross revenues generated by the restaurant over $350,000 for years nine through Fifteen. VI.2. The minimum flat fee per year shall be paid by River Boats to the City as follows: a. $1,2(?0 on July 1 st of each year of this Agreement; $1,200 on October lst of each year of this Agreement; and c. Any percentage payment due the City from the previous year by February 15th of each yeaz. VI.3. River Boats shall keep at the floating restaurant, or at 495 Kenny Road, St. Paul, Minnesota or at its current principal place of business, a permanent accurate set of books and records which will accurately reflect and permit the deternunation and verification of the amounts due the City of Saint Paul under the Agreement. Such books, records and accounts shall be available for inspection by the City between the hours of 9:00 a.m. and 5:00 p.m., Monday through Friday, inclusive by any duly authorized agent of the City, at times of restaurant business operation. G�� -81� V.4. On or before the fifteenth day of February of each calendar year under this A�reement, River Boats shall submit to the City a statement, in duplicate, showing the total gross revenue received from the operation of the restaurant for the preceding year. The statement to be submitted shall be in such form and contain such detail as may be necessary to adequately account to the City in accordance with generally accepted accounting principles, for the payments due under this Agreement. ARTICLE VII OPERATIONS VII.1. The restaurant must contain a sit down dinner element but may also contain a fast food element. It is anticipated that the restaurant will be open to the generai public with a family oriented ambience primarily offering a casual dining experience that wi11 serve patrons who arrive from land and water. While the restaurant will attempt to attract families, service is availabie to all people who wish to frequent the facility. There will be a particulaz focus on serving patrons who aze visiting Harriet Island and the waterfront. VIT.2. River Boats shall operate the entergrise in a manner which will be a credit to the City of Saint Paul. a. The facility housing the enterprise shail be kept in good repair both inside and out. Painting will be done, as needed, in a timely manner. b. The outside of the enterprise shall be kept free of trash and debris. c. On-land facilities and azeas which support the enterpxise, shall be kept in a clean condition. d. Customers, guests and generai public shall be treated in a polite, sensitive and customer friendly manner. VII3. The restaurantlocated on the public dock is intended to serve the users of Harriet Isiand Park, therefore off-site catering by the facility shall account for no more than 15% of its annual sales. VII.4. The operating hours of the floating restaurant shall be no earlier than 6:00 a.m. or later than the hours of Harriet Is1and Park, which is cunently 11:00 p.m. VILS. River Boats may erect signage to advertise and identify its enterprise. Such signage shall be submitted to the City for approval for content and location prior to it being erected. ` VII.6. The patrons of the floating restaurant shall park their vehicles at a location determined by the City. The patrons of River Boats shall have access to public parking adjacent to the public dock. It is understood that the exact location of the parking has not been determined and is dependent upon the final design of Harriet Island. The City shall qg-�'il have the right to dictate altemate pazking locations that are reasonably close to the public dock. ARTICLE VIII DEFAULT AND CURE VIII.1. If River Boats faiis to comply with any material term of this Agreement, the City shall have the option to declaze this Agreement in default. If the City chooses to declaze this Agreement in default for a breach by River Boats, it sha11 provide written notification of the breach by registered mail. If River Boats does not cure the breach within thirty (30) days of receiving the written notice, the City shall have the right to terminate this Agreement after the 30 days expires or to bring an action in a court of law. VIII.2. If the City fails to comply with any material term of this Agreement, River Boats shall have the option to declare this Agreement in default. If the River Boats chooses to declaze this Agreement in default for a breach by the Ciry, it sha11 provide written notification of the breach by registered mail. If the City does not cure the breach within thirty (30) days of receiving the written notice River Boats sha11 have the right to terminate this Agreement after the 30 days expires or to bring an action in a court of law. ARTICLE IX TERMINATION IX1. This agreement shall automatically terminate at the end of the fifteenth year term unless the parties agree in writing to extend it. IX.2. If River Boats or another party as outlined in Articie V,2. fails to commence operation of the restaurant by 7uly 1, 1999, this Agreement shall automatically be terminated unless: a. The inability to commence operations by July 1, 1999 was caused in whole or in part by actions or omissions of the City; or b. The City agrees in writing to pernut a later opening date; or c. The failure to commence operations is the result of events out of the control of River Boats such as labor disputes, acts of Csod or other events listed in Article XVI3. � IX.3. If this Agreement is terminated by the City for failure to open by July 1, 1999, River Boats wiil make no ciairn against the Ciry due to River Boats' failure to implement its restaurant operation unless the City's conduct has prevented it from opening. 5 �g.�'11 IX.4. Notwithstanding any other provision herein, this Agreement sha11 automatically terminate without the tight to cure upon the occurrence of any of the events described below: a. A petition by or against River Boats under the bankruptcy laws af the United States, which perition is not dismissed within ninety (90) days from the date of such filing; and b. The assignment by River Boats of its assets for the benefit of creditors under any state insolvency laws. IX.S. Upon terniination of this Agreement River Boats shali vacate the location used by the enterprise and shall leave the premises in as good condition and order as they were at the time they were accepted, ordinary and reasonable use and damage by the elements excepted. ARTICLE X SUB-LEASE OR SALE X.1. That the restaurant may be self-operated by River Boats, or by another entity or person with the approval of the City. X.2. If River Boats sub-leases, assigns or transfers this Agreement to a third- party, 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 third-party; (ii) the nature of the proposed assignee's business; (iii) the proposed agreement and any other agreements to be entered into concurrently with such third-party, including full disclosure of all financiai terms; and (iv) such financial information as the Ciry may reasonably request conceming the proposed third-pariy. River Boats shall pay the City a reasonable fee for the City's expenses, including attorneys' fees, in reviewing such proposed sublease or transfer and in reviewing the proposed third-party's financial ability to assume the Agreement, said fee not to exceed $500.00. X.3. If there is a sub-lease or sale to any other party(ies), the other party(ies) and River Boats shall submit to the City their plans for the operarion of the floating restaurant. This plan must include: operating schedule, menu(s), any entertainxnent plans, financial structure and references in the case of a sale or lease, management structure and any plans to remodel/redesign the boat. This shall occur before any sale or lease is completed. X.4. In the event of a sub-lease of the floating restaurant operation, River Boats will remain responsible for the terms of this Agreement unless released in writing by the City. X.S. In the event of a sale or assignment of the floating restaurant operation the new owner(s) shall be responsible to comply with all the terms of this Agreement. � ARTICLE XI COMPLIANCE WITH LAW XI.1. River Boats, its personal representatives, successors in interest and assigns, as a part of the consideration hereof, do hereby promise, covenant and agree, that a. No person, on the ground of race, sex, sexual or affectional orientation, color, creed, religion, age, disability, familial status, marital status, status with respect to public assistance or national origin or ancestry sha11 be excluded from participating in, be denied the benefits of or be othervise subjected to discrimination in the use of said facilities. b. No discrimination sha11 be practiced in the selection of employees and contractors, by contractors in the selection and retention of first tier subcontractors, and by first-tier subcontractors in the selection and retention of second-tier subcontractors. c. Such discrimination shall not be practiced against the public in its access in and use of the facllities and services provided for pubiic accommodations (such as eating, rest and recreation) constructed or operated on the floating restaurant, and; d. River Boats shall use the premises in compliance with all other requirements unposed pursuant to the Saint Paul Legislative Code Chapter 183. XI.2. River Boats shail keep and observe all the laws and ordinances relating to said premises and the care and use thereoE In regazds to the above, River Boats sha11 be responsible to obtain and keep current any Iicenses and permits needed to operate the facility. ARTICLE XII UTILITIES AND MATNTEPIANCE XILl. Any ongoing operations or maintenance expenses shall be River Boats' responsibility. XII.2. River Boats shall pay a11 utiliry hook-up and usage costs associated with their enterprise. This includes: water, electrical, gas, sewer, telephone, cable television and any other such service. River Boats is responsible for all costs associated with utility dock and shore modifications necessary to accommodate its proposal so long as the location of the restaurant is at the location identit:�,d on Ea�hibit A. Aowever, at the location on Exhibit A on the public dock, there aze presently utility hookups that River Boats shall be permitted to connect to. This provision is subject to Article II.S. XII3. River Boats shail dispose of ail rubbish and refuse generated in connection with its operation at its cost but shali not be responsible for the upkeep, maintenance or qp-t1l repair of park property used in connection with the entetprise. The City shall provide a location at no cost for River Boats to place a trash dumpster adjacent to the pazking azea in which to dispose of its rubbish and refuse. ARTICLE XIII INDEMINIFICATION XIII.1 That River Boats hereby agrees to hold the City and all of its officers, agents and employees hannless and indemnified from and against any penalty, damage or chazge imposed for any violation of laws or ordinances that aze occasioned by the negligence of River Boats or those hoiding or operating under River Boats. In addition thereto, River Boats hereby agrees to hold harmless and indemnify the City, its officers, agents and employees from and against all loss, cost, damage or expense arising or growing out of any accident or other occurrence in connection with the operation by River Boats on or about the premises used by River Boats pursuant to the privileges granted hereunder which may cause injury to any person or property. ARTICLE XIV INSURANCE XIV.1. As additional asswance of such indemnification, but not in lieu thereof, River Boats shall obtain and pay the premiums upon a generai liability insurance policy(ies) which wiil name the City as an additional insured. Such policy(ies) shall cover injury to persons or property azising out of the operation of River Boats business with limits of not less than $50,000 with respect to property loss, $300,OOQ with respect to injury or death to any one person and $750,000 for any number of ciaims azising out of a single occurrence. If the maYimum liability is modified by the legislature, River Boats shall be required to provide coverage adequate to cover up to the limits of the City's maacimum liabiliry. The policy(ies) of insurance shali be submitted to the City Attorney for the City for approval and shali be filed with the Departrnent of Finance and Management Services prior to the execution of this Agreement. Such insurance policy(ies) shall be kept in force during the entire period that this Agreement or any renewal thereof is in effect and shall contain a provision which will not permit cancellation without 30 days prior written notice to the City. XIV.2. That in the event that River Boats detemunes to se11 beer and/or wine or liquor, River Boats shall provide a liquor liability insurance policy which names the City as an additional insured in limits required by State law. The insurance policy(ies) shali be filed with the Department of Finance and Management Services prior to the serving of beer andlor wine or liquor by River Boats. Such insurance policy(ies) shall be kept in force during the entire period that this Agreement or any renewal thereof is in effect and shall contain a provision which will not pertnit cancellation without 30 days prior written notice to the City. XIV.3. 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 � a � ^�� 1 shall be allowed to self-insure up to this amount, provided first that it maintains a general liability policy for claims exceeding this amount up to the limits addressed above and, further, that it maintains at all times a certificate of deposit 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 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 shail execute a written agreement with a federaily insured Bank or other financial institution, lawfully doing business in the State of Minnesota, and issuing the certificate of deposit, which requires the bank to notify, in writing, the City of St. Paul through its Manager of Special5ervices, Parks & Recreation Bivision of St. Paul, at 300 City Hall Annex, 25 West Fourth Street, St. Paul, MN 55102, not less than thirty (30) days before the certificate of deposit is transferred, encumbered, posted as collateral for any other debt or obiigation, gifted, devised, or othenvise 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 Deposit without first obtaining the City's express written consent. Any transfer or compromise of the Certificate of Deposit, without the City of St. PauPs 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. Concomitant with the duty to indemnify, River Boats also agrees to 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 cQnnection 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 parties. To this end, River Boats agrees to provide the City with any and all documents relating to any claims including, �vithout limitation, insurance forms, written reports, records of repairs or damages, any and all 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 for oral interviews or depositions and shall timely comply with all discovery requests. ARTICLE XV CITY EVENTS AND CON5TRUCTION XV.1. That the City will not be responsible for lack of revenue due to construction projects in proxunity to the floating restaurant. XV.2. The City' shali have the right to produce special events in Harriet Island Pazk that may negatively impact the floating restaurant, but shall use its best efforts to produce the events in such a way as to minimize any access or financial loss to the floating restaurant. � L•] a�-��1 ARTICLE XVI ADDITIONAL PROVISIONS XVI.1. Settlement: This Agreement, the River Boats Agreement at Watergate Marina and the Settlement Agreement in River Boats. Inc. v. The Citv of Saint Paul and Robert P. Piram, File No. 3-95-517 satisfy all claims, causes of action and controversies brought forwazd by River Boats against the Ciry. This provision sha11 survive any termination of this Agreement. XVI.2. Waiver: River Boats will make no claim and waives any right against the City on account of any loss or damage by fire, water, windstorm, floods, freezing, gas, electric wires and other acts of God affecting its property in connection with its operation unless contributed to by the City's negligence. XVI3. Force Majure: The failure of performance or delays by either party shall be excused if caused by or if arising out of acts of God, strikes, labor disputes, acts of the public enemy, wars, riots, floods, storms, material shortages, act of State or Federal government and any other causes whether similaz or dissimilar, which are not reasonably within the control of the party clauning Force Majeure. XVI.4. No Exclusivity: No provisions of this Agreement may be construed as giving River Boats exclusive rights to this type of enterprise or any other enterprise in that portion of the river where the enterprise is located. The City sha11 have the right to evaluate and place other business ventures within the proximity of River Boats. XVI.S. Notices: All notices pertaining to this Agreement shall be in writing and shall be sufficiently given if personally delivered or sent by registered mail (date of receipt to control) to City: Robert P. Piram Superintendent of Parks and Recreation 25 West Fourth Street, Room 300 Saint Paul, Minnesota 55102 to River Boats: Gene Cassidy River Boats, Inc. 495 Kenny Road Saint Paul, Minnesota 55101 The above addresses ar persons to whom notice may be delivered or sent may be changed from time to time by notice under this Agreement. XVI.6. Independent Contractor: The parties hereto agree that they aze acting as independent contractors and that nothing in this Agreement is intended to create, nor shall 10 � � -t�'11 anything herein be construed or interpreted as creating a partnetship between the City and River Boats except as expressly agreed to herein. Each party shall be responsible for its own sepatate debts, obligations and other liabilities. XVI.7. Severability: If any provision of this Agreement shall be declazed invalid for any reason and such provision does not destroy the objects and purposes of this Agreement or make unfeasible the performance of the remaining terms and conditions of this Agreement, such provision shall be deemed severable and the remaining terms and provisions of this Agreement shall be enforced in accordance with their terms. IN WITNESS WHEREOF, the parties hereto have hereunto set their hands to this Agreement as of the day and year first above written. APPROVED AS TO FORM: Assistant City Attorney FOR RIVER BOATS, INC.: � � H. Eugen assidy Its Chief Executive Officer CITY OF SAINT PAUL: The Honorable Norm Coleman, Mayor Robert P. Piram, Superintendent of Parks and Recreation Director, Department of Finance and Management Services City Clerk 11 Council File # p� O ��. � 1 t � �i f ��� RESOLUTION CITY OF SAINT PAUL, MINNESOTA Green Sheet # Sp��i�'� Presented By Referred to Committee: Date 1 WHSREAS, Riverboats Inc. desires to operate a floating restaurant 2 on the vessel known as the ReJoyce at Harriet Island Park owned 3 and operated by the City of Saint Pau1, and; 4 WHEREAS, the City recognizes that this operation would provide a 5 benefit to the public by expanding opportunities for the 6 enjoyment of the Mississippi River and the City of Saint Paul's 7 riverfront environment, and; 8 WHEREAS, entering into this lease is part of the settlement of 9 the law suit filed by Riverboats Inc. against the City of Saint 16 Paul and Robert P. Piram, Superintendent of Parks and Recreation, 11 and; 12 NOW THEREFORE BE IT RESOLVED, that the proper City officials are 13 hereby directed and authorized to enter into the attached 14 agre4ement with Riverboats Inc. Requested by: Adopted by Council: Date c � ` �,��, T ,_� - � l Adoption Certified by Covncil Secretary By Ap� � �G ➢ivisio Parks a eation � � V� Y, Form Approved by City Attorney Parks and Recreation CONfACT P£qSON AND PHONE Vic Wittgenstein (226-6409) MUST BE ON COIINCIL AGENDA BY (DA7� ASAP DATE INITIAiED July 30, 1998 -�\ A551 Y NUM9ERF0� ROIITING OPAER TOTAL; OF SIGNA'fURE PAGES_ ICLIP ALL LOCATIDNS PoR SIGNANRE) ACTION REpUE5iED: GREEN SHEET INRIAVOATE � DEPARTMENiD1RECTDR ? CITY ATfORNEY _FINANQAL SEF2VICE5 OIR. 3 MAYOR (OR A5515 NT) r S i / 9$•8�1 u ( N0.62733 INTAL/�ATE 4 CRV COUNCIL 5 Parks & Recreation Signatures of the Superintendent of Parks and Recreation, City Attorney, and the Mayor and passage of the attached Council Resolution by the City Council. RECOMMEN�ATIONS: Approve (A) or Rejec[ (R� _PLANNING COMMISSION __CNIL SERVICE COMMISSION _cB Cad1MlTTEE _ A 5fAFF _ DISTRIC7 COUNqL 54PPORTS WHfCH COUNQI QBJECTIVE? INITIATING PR08LEM, ISSUE, OPP�RTUNI7Y (Who, Whai, When, Wkare, tMry�: PERSQNAL SERVICE CONTRACTS M115T ANSWER TNE FOLLOW WG QUESTIONS: L Has this person/frtm ever worketl u�de� 2 Con[rac[ tor [his Gepartment? YES NO 2. Has Nis persoNfirm ever been a c�ty employee? YES NO 3. Does this personRnm possess a sfall no[ normalty possesseC by any cmrent ciry employse? YES NO ExWein ell yes answem on agpa�ata sheet antl attach to 8�ean sheet. Riverboats Inc. has proposed operating a floating restaurant using the vessel Rejoyce at Harriet Island Park on ihe public dock. ����� �lUG 0 3 ADVAMAGES IF APPROVE�: Y�'� OF�tC� The pubiic wi11 have the opportunity to enjoy food and beverages on the boat which will be located adjacent to the City's public dock at Harriet Island. OISA�VANTAGES IF APPROVED: None ISADVANTAGES IF NOT APPROVED: he faw suit against the City wifl go forward. Gaunc'st t;esear�� �°�t2r i . � �. �x��+� t'AL AMOUNT OF TRANSAGTION � �L,4OO 'F �DINGSOURCE Concessions Other COST/REYENUE BUD(iETED (CIRCLE ONE) YES ND ACTNITY NUMBER 23123 NCIAl1NFORMATbN: (E%PIAIM Riverboats Inc. shall pay the City $2,400 annuaily aga+nst a percentage of gross sales as lined on page 3 of the agreement. 7 ,. q g .�tt AGREEMENT This Agreement is made and executed on this day of , 1498, by and between the City of Saint Paul, hereinafter referred to as the "City" and River Boats, Inc., hereinafter refened to as"River Boats." ARTICLE I RECITALS WHEREAS, River Boats desires to operate a floating restaurant on the Vessel know as the ReJoyce at Harriet Island Pazk owned and operated by the City of Saint Paul, and; WHEREAS, the City recognizes that this operation would provide a benefit to the public by expanding opporhuiities for the enjoyment of the Mississippi River and the City of Saint Paul's riverfront environment. NOW, THEREFORE, in consideration of the promises and mutual covenants herein contained, it is agreed as follows: ARTICLE II LOCATION AND RELOCATION II.1. The City hereby grants to River Boats the privilege of operating a floating restaurant adjacent to the City's public dock, located in Harriet Island Pazk at the specific site identified on E�ibit A attached hereto on the vessel currenfly known as the ReJoyce. The ReJoyce shail be located within 1Q to 15 feet of the location depicted on E�ibit A. II.2. That the boat housing the floating restaurant must be abie to anchor itself and not need to use the public dock for any weight bearing tie-up purpose. II.3. River Boats' customers and personnel shall be able to use the public dock for ingress and egress into the floating restaurant. II.4. That in cases of emergency or disaster such as flood or other natural act, River Boats will vacate its location adjacent to the public dock if directed to do so hy the City's Superintendent of Pazks and Recreation, Fire Chief, Police Chief or other City official delegated such power due to the emergency. The cost of this relocation shall be borne by River Boats. Further, River Boats will make no claim against the City for lost business or added expenses due to this temporary relocation unless the Cit�� was responsible in whole or in part for the need to relocate. � II.S. That the City and IZiver Boats acknowledge that construction projects in the Mississippi River areas may be ongoing during the term of this Agreement and agree to cooperate with each other if the construction causes the enterprise to be moved to a aa .$4� different location temporarily. Such new location shall be as accessible as the original location, as is reasonably possibie and sha11 be made at the City's cost. TI.6. If it is necessary to permanendy relocate the restaurant from the original location, the City sha11 at all times determine the new site of the restaurant at Harriet Island subject to River BoaYs approvai. The parties shall negotiate in good faith for an altemate location. If it is the City that causes the move, the City sha11 pay for the relocation. In all other cases any relocation costs shall be borne by River Boats. AI2TICLE III TERM OF THE AGREEMENT III1. The term of this Agreement shall be fifteen (15) years. It shall commence upon the commencement of the floating restaurant's operations and shall continue for fifteen (15) years. The term shall end on December 31st of the fifteenth year. For example, if the restaurant commences operations in 1999, this Agreement would terminate on December 31, 2013. III2. River Boats may commence operations any time after the renovation is comgleted as required in Article V.2., but shall commence operation of the restaurant no later than July 1, 1999. III.3. Provided there are no uncured defaults of this Agreement, the Ciry agrees to enter into good faith negotiations for renewal of the Agreement at the end of the fifteen- year term. ARTICLE IV SITE MAINTENANCE IV.1. The City shall use its best efforts to maintain and keep the park area in, about and adjacent to the area from which the enterprise will operate, clear of refuse, rubbish and miscellaneous unsightly storage. ARTICLE V RENOVATION-CONSTRUCTION V.i. The City recognizes that extensive renovation and construction is required to make the ReJoyce suitable to operate as a restaurant. V.2. River Boats agrees � renovate the ReJoyce prior to locating the vessel at Harriet Island. The renovation sha11 be complete no later than July i, 1999. V3. The renovation work identified in part V.2. shall be performed at a location at the harbor by the NSP Plant or under the "High Bridge" at the site depicted on E�ibit B - 2 q�' � whichever is more feasible and the City wi11 make available to River Boats at no charge for use by River Boats to renovate the Re3oyce. V.4. The renovation work identified in part V.2. shall be completed prior the ReJoyce being relocated to the Harriet Island site and that the boat shall be open for business within two weeks of its move to f�arriet Island, with only minimal installation of equipment and supplies such as tables and chairs to be accomplished unless othenvise agreed to in writing between River Boats and the City. V.S. All costs of Yhis renovarion, including utilities, shall be the responsibility of River Boats. ARTICLE VI PAYMENTS AND REPORTING REQUIREMENTS VI1. River Boats shall pay the City the greater of the following: a. $2,400 or minimum flat fee per year; or (1) 1.75% of gross revenues generated by the restaurant over $35Q,000 for the first two years of operation; (2) 2.0% of the gross revenues generated by the restaurant over $350,000 for years three through eight; and (3) 2.5% of the gross revenues generated by the restaurant over $350,000 for years nine through Fifteen. VI.2. The minimum flat fee per year shall be paid by River Boats to the City as follows: a. $1,2(?0 on July 1 st of each year of this Agreement; $1,200 on October lst of each year of this Agreement; and c. Any percentage payment due the City from the previous year by February 15th of each yeaz. VI.3. River Boats shall keep at the floating restaurant, or at 495 Kenny Road, St. Paul, Minnesota or at its current principal place of business, a permanent accurate set of books and records which will accurately reflect and permit the deternunation and verification of the amounts due the City of Saint Paul under the Agreement. Such books, records and accounts shall be available for inspection by the City between the hours of 9:00 a.m. and 5:00 p.m., Monday through Friday, inclusive by any duly authorized agent of the City, at times of restaurant business operation. G�� -81� V.4. On or before the fifteenth day of February of each calendar year under this A�reement, River Boats shall submit to the City a statement, in duplicate, showing the total gross revenue received from the operation of the restaurant for the preceding year. The statement to be submitted shall be in such form and contain such detail as may be necessary to adequately account to the City in accordance with generally accepted accounting principles, for the payments due under this Agreement. ARTICLE VII OPERATIONS VII.1. The restaurant must contain a sit down dinner element but may also contain a fast food element. It is anticipated that the restaurant will be open to the generai public with a family oriented ambience primarily offering a casual dining experience that wi11 serve patrons who arrive from land and water. While the restaurant will attempt to attract families, service is availabie to all people who wish to frequent the facility. There will be a particulaz focus on serving patrons who aze visiting Harriet Island and the waterfront. VIT.2. River Boats shall operate the entergrise in a manner which will be a credit to the City of Saint Paul. a. The facility housing the enterprise shail be kept in good repair both inside and out. Painting will be done, as needed, in a timely manner. b. The outside of the enterprise shall be kept free of trash and debris. c. On-land facilities and azeas which support the enterpxise, shall be kept in a clean condition. d. Customers, guests and generai public shall be treated in a polite, sensitive and customer friendly manner. VII3. The restaurantlocated on the public dock is intended to serve the users of Harriet Isiand Park, therefore off-site catering by the facility shall account for no more than 15% of its annual sales. VII.4. The operating hours of the floating restaurant shall be no earlier than 6:00 a.m. or later than the hours of Harriet Is1and Park, which is cunently 11:00 p.m. VILS. River Boats may erect signage to advertise and identify its enterprise. Such signage shall be submitted to the City for approval for content and location prior to it being erected. ` VII.6. The patrons of the floating restaurant shall park their vehicles at a location determined by the City. The patrons of River Boats shall have access to public parking adjacent to the public dock. It is understood that the exact location of the parking has not been determined and is dependent upon the final design of Harriet Island. The City shall qg-�'il have the right to dictate altemate pazking locations that are reasonably close to the public dock. ARTICLE VIII DEFAULT AND CURE VIII.1. If River Boats faiis to comply with any material term of this Agreement, the City shall have the option to declaze this Agreement in default. If the City chooses to declaze this Agreement in default for a breach by River Boats, it sha11 provide written notification of the breach by registered mail. If River Boats does not cure the breach within thirty (30) days of receiving the written notice, the City shall have the right to terminate this Agreement after the 30 days expires or to bring an action in a court of law. VIII.2. If the City fails to comply with any material term of this Agreement, River Boats shall have the option to declare this Agreement in default. If the River Boats chooses to declaze this Agreement in default for a breach by the Ciry, it sha11 provide written notification of the breach by registered mail. If the City does not cure the breach within thirty (30) days of receiving the written notice River Boats sha11 have the right to terminate this Agreement after the 30 days expires or to bring an action in a court of law. ARTICLE IX TERMINATION IX1. This agreement shall automatically terminate at the end of the fifteenth year term unless the parties agree in writing to extend it. IX.2. If River Boats or another party as outlined in Articie V,2. fails to commence operation of the restaurant by 7uly 1, 1999, this Agreement shall automatically be terminated unless: a. The inability to commence operations by July 1, 1999 was caused in whole or in part by actions or omissions of the City; or b. The City agrees in writing to pernut a later opening date; or c. The failure to commence operations is the result of events out of the control of River Boats such as labor disputes, acts of Csod or other events listed in Article XVI3. � IX.3. If this Agreement is terminated by the City for failure to open by July 1, 1999, River Boats wiil make no ciairn against the Ciry due to River Boats' failure to implement its restaurant operation unless the City's conduct has prevented it from opening. 5 �g.�'11 IX.4. Notwithstanding any other provision herein, this Agreement sha11 automatically terminate without the tight to cure upon the occurrence of any of the events described below: a. A petition by or against River Boats under the bankruptcy laws af the United States, which perition is not dismissed within ninety (90) days from the date of such filing; and b. The assignment by River Boats of its assets for the benefit of creditors under any state insolvency laws. IX.S. Upon terniination of this Agreement River Boats shali vacate the location used by the enterprise and shall leave the premises in as good condition and order as they were at the time they were accepted, ordinary and reasonable use and damage by the elements excepted. ARTICLE X SUB-LEASE OR SALE X.1. That the restaurant may be self-operated by River Boats, or by another entity or person with the approval of the City. X.2. If River Boats sub-leases, assigns or transfers this Agreement to a third- party, 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 third-party; (ii) the nature of the proposed assignee's business; (iii) the proposed agreement and any other agreements to be entered into concurrently with such third-party, including full disclosure of all financiai terms; and (iv) such financial information as the Ciry may reasonably request conceming the proposed third-pariy. River Boats shall pay the City a reasonable fee for the City's expenses, including attorneys' fees, in reviewing such proposed sublease or transfer and in reviewing the proposed third-party's financial ability to assume the Agreement, said fee not to exceed $500.00. X.3. If there is a sub-lease or sale to any other party(ies), the other party(ies) and River Boats shall submit to the City their plans for the operarion of the floating restaurant. This plan must include: operating schedule, menu(s), any entertainxnent plans, financial structure and references in the case of a sale or lease, management structure and any plans to remodel/redesign the boat. This shall occur before any sale or lease is completed. X.4. In the event of a sub-lease of the floating restaurant operation, River Boats will remain responsible for the terms of this Agreement unless released in writing by the City. X.S. In the event of a sale or assignment of the floating restaurant operation the new owner(s) shall be responsible to comply with all the terms of this Agreement. � ARTICLE XI COMPLIANCE WITH LAW XI.1. River Boats, its personal representatives, successors in interest and assigns, as a part of the consideration hereof, do hereby promise, covenant and agree, that a. No person, on the ground of race, sex, sexual or affectional orientation, color, creed, religion, age, disability, familial status, marital status, status with respect to public assistance or national origin or ancestry sha11 be excluded from participating in, be denied the benefits of or be othervise subjected to discrimination in the use of said facilities. b. No discrimination sha11 be practiced in the selection of employees and contractors, by contractors in the selection and retention of first tier subcontractors, and by first-tier subcontractors in the selection and retention of second-tier subcontractors. c. Such discrimination shall not be practiced against the public in its access in and use of the facllities and services provided for pubiic accommodations (such as eating, rest and recreation) constructed or operated on the floating restaurant, and; d. River Boats shall use the premises in compliance with all other requirements unposed pursuant to the Saint Paul Legislative Code Chapter 183. XI.2. River Boats shail keep and observe all the laws and ordinances relating to said premises and the care and use thereoE In regazds to the above, River Boats sha11 be responsible to obtain and keep current any Iicenses and permits needed to operate the facility. ARTICLE XII UTILITIES AND MATNTEPIANCE XILl. Any ongoing operations or maintenance expenses shall be River Boats' responsibility. XII.2. River Boats shall pay a11 utiliry hook-up and usage costs associated with their enterprise. This includes: water, electrical, gas, sewer, telephone, cable television and any other such service. River Boats is responsible for all costs associated with utility dock and shore modifications necessary to accommodate its proposal so long as the location of the restaurant is at the location identit:�,d on Ea�hibit A. Aowever, at the location on Exhibit A on the public dock, there aze presently utility hookups that River Boats shall be permitted to connect to. This provision is subject to Article II.S. XII3. River Boats shail dispose of ail rubbish and refuse generated in connection with its operation at its cost but shali not be responsible for the upkeep, maintenance or qp-t1l repair of park property used in connection with the entetprise. The City shall provide a location at no cost for River Boats to place a trash dumpster adjacent to the pazking azea in which to dispose of its rubbish and refuse. ARTICLE XIII INDEMINIFICATION XIII.1 That River Boats hereby agrees to hold the City and all of its officers, agents and employees hannless and indemnified from and against any penalty, damage or chazge imposed for any violation of laws or ordinances that aze occasioned by the negligence of River Boats or those hoiding or operating under River Boats. In addition thereto, River Boats hereby agrees to hold harmless and indemnify the City, its officers, agents and employees from and against all loss, cost, damage or expense arising or growing out of any accident or other occurrence in connection with the operation by River Boats on or about the premises used by River Boats pursuant to the privileges granted hereunder which may cause injury to any person or property. ARTICLE XIV INSURANCE XIV.1. As additional asswance of such indemnification, but not in lieu thereof, River Boats shall obtain and pay the premiums upon a generai liability insurance policy(ies) which wiil name the City as an additional insured. Such policy(ies) shall cover injury to persons or property azising out of the operation of River Boats business with limits of not less than $50,000 with respect to property loss, $300,OOQ with respect to injury or death to any one person and $750,000 for any number of ciaims azising out of a single occurrence. If the maYimum liability is modified by the legislature, River Boats shall be required to provide coverage adequate to cover up to the limits of the City's maacimum liabiliry. The policy(ies) of insurance shali be submitted to the City Attorney for the City for approval and shali be filed with the Departrnent of Finance and Management Services prior to the execution of this Agreement. Such insurance policy(ies) shall be kept in force during the entire period that this Agreement or any renewal thereof is in effect and shall contain a provision which will not permit cancellation without 30 days prior written notice to the City. XIV.2. That in the event that River Boats detemunes to se11 beer and/or wine or liquor, River Boats shall provide a liquor liability insurance policy which names the City as an additional insured in limits required by State law. The insurance policy(ies) shali be filed with the Department of Finance and Management Services prior to the serving of beer andlor wine or liquor by River Boats. Such insurance policy(ies) shall be kept in force during the entire period that this Agreement or any renewal thereof is in effect and shall contain a provision which will not pertnit cancellation without 30 days prior written notice to the City. XIV.3. 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 � a � ^�� 1 shall be allowed to self-insure up to this amount, provided first that it maintains a general liability policy for claims exceeding this amount up to the limits addressed above and, further, that it maintains at all times a certificate of deposit 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 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 shail execute a written agreement with a federaily insured Bank or other financial institution, lawfully doing business in the State of Minnesota, and issuing the certificate of deposit, which requires the bank to notify, in writing, the City of St. Paul through its Manager of Special5ervices, Parks & Recreation Bivision of St. Paul, at 300 City Hall Annex, 25 West Fourth Street, St. Paul, MN 55102, not less than thirty (30) days before the certificate of deposit is transferred, encumbered, posted as collateral for any other debt or obiigation, gifted, devised, or othenvise 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 Deposit without first obtaining the City's express written consent. Any transfer or compromise of the Certificate of Deposit, without the City of St. PauPs 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. Concomitant with the duty to indemnify, River Boats also agrees to 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 cQnnection 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 parties. To this end, River Boats agrees to provide the City with any and all documents relating to any claims including, �vithout limitation, insurance forms, written reports, records of repairs or damages, any and all 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 for oral interviews or depositions and shall timely comply with all discovery requests. ARTICLE XV CITY EVENTS AND CON5TRUCTION XV.1. That the City will not be responsible for lack of revenue due to construction projects in proxunity to the floating restaurant. XV.2. The City' shali have the right to produce special events in Harriet Island Pazk that may negatively impact the floating restaurant, but shall use its best efforts to produce the events in such a way as to minimize any access or financial loss to the floating restaurant. � L•] a�-��1 ARTICLE XVI ADDITIONAL PROVISIONS XVI.1. Settlement: This Agreement, the River Boats Agreement at Watergate Marina and the Settlement Agreement in River Boats. Inc. v. The Citv of Saint Paul and Robert P. Piram, File No. 3-95-517 satisfy all claims, causes of action and controversies brought forwazd by River Boats against the Ciry. This provision sha11 survive any termination of this Agreement. XVI.2. Waiver: River Boats will make no claim and waives any right against the City on account of any loss or damage by fire, water, windstorm, floods, freezing, gas, electric wires and other acts of God affecting its property in connection with its operation unless contributed to by the City's negligence. XVI3. Force Majure: The failure of performance or delays by either party shall be excused if caused by or if arising out of acts of God, strikes, labor disputes, acts of the public enemy, wars, riots, floods, storms, material shortages, act of State or Federal government and any other causes whether similaz or dissimilar, which are not reasonably within the control of the party clauning Force Majeure. XVI.4. No Exclusivity: No provisions of this Agreement may be construed as giving River Boats exclusive rights to this type of enterprise or any other enterprise in that portion of the river where the enterprise is located. The City sha11 have the right to evaluate and place other business ventures within the proximity of River Boats. XVI.S. Notices: All notices pertaining to this Agreement shall be in writing and shall be sufficiently given if personally delivered or sent by registered mail (date of receipt to control) to City: Robert P. Piram Superintendent of Parks and Recreation 25 West Fourth Street, Room 300 Saint Paul, Minnesota 55102 to River Boats: Gene Cassidy River Boats, Inc. 495 Kenny Road Saint Paul, Minnesota 55101 The above addresses ar persons to whom notice may be delivered or sent may be changed from time to time by notice under this Agreement. XVI.6. Independent Contractor: The parties hereto agree that they aze acting as independent contractors and that nothing in this Agreement is intended to create, nor shall 10 � � -t�'11 anything herein be construed or interpreted as creating a partnetship between the City and River Boats except as expressly agreed to herein. Each party shall be responsible for its own sepatate debts, obligations and other liabilities. XVI.7. Severability: If any provision of this Agreement shall be declazed invalid for any reason and such provision does not destroy the objects and purposes of this Agreement or make unfeasible the performance of the remaining terms and conditions of this Agreement, such provision shall be deemed severable and the remaining terms and provisions of this Agreement shall be enforced in accordance with their terms. IN WITNESS WHEREOF, the parties hereto have hereunto set their hands to this Agreement as of the day and year first above written. APPROVED AS TO FORM: Assistant City Attorney FOR RIVER BOATS, INC.: � � H. Eugen assidy Its Chief Executive Officer CITY OF SAINT PAUL: The Honorable Norm Coleman, Mayor Robert P. Piram, Superintendent of Parks and Recreation Director, Department of Finance and Management Services City Clerk 11