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01-89ORIGINAL Presented By Referxed to 1� 2 3 4 5 Council File # O\-S'9 Green Sheet # 10GGG� � RESOLUTION SAINT PAUL, MINN O �� a Committee: Date WHEREAS, the City has undertaken various projects related to the renovation of Harriet Island Regional Park, and WHEREAS, with many renovations now completed the City desires to provide amenities for the enjoyment of park goers, and 6 WHEREAS, Mildred Pierce Inc. has agreed to locate and 7 operate a floating restaurant at Harriet Island as an amenity 8 serving park users, and 9 WHEREAS, the proposed restaurant facility will begin 10 operations in June 2001; now, therefore, be it 11 RESOLVED, that proper City officials and staff are hereby 12 directed and authorized to enter into the attached lease 13 agreement with Mildred Pierce Inc for locating and operating a 14 floating restaurant on the Public Dock in Harriet Island Regional 15 Park. 16 17 Requested by: Adopted by Council: Date �� p` , � Adoption Certi£ied by Council Secretary By �� 2 c�CS�' Approved by Mayor: Date: By: By: _S�� Approved by Mayor for Submission to Council By: Form Approved by City Attorney V�rVO DEPA0.TMENT/OFFICE/COUNCIL DNTEINITIATED GREEN SHEET NO. 106663 Parks and Recreation 1/31/01 COMACT PERSON AND PHONE INITIAUDATE INITIAVDATE Mike Hahm 266-6444 �.►h, l oeeaarn��rowecroR 4 CITYCOUNCIL ASSIGN NUMBER FO Z CIiY ATTORNEY — CIN CLFRK MUST BE ON COUNCIL AGENDA BY (DATE) NOUTING ORDEfl BUDGET DIRECTOR FIN. & MGT. SERVICE$ OIR. 2/7/01 3 MAVOR (OR ASSISTANT) 5 Parks & Recreation - 300 CHA TOTAL t OF SIGNATURE PAGES � (CLIP ALL LOCATIONS FOR SIGNAiVRE� ACTIOPo REQUESTED: Authorizing City Officials and staff to enter into Lease Agreement with the Mildred Pierce Inc. for locating a floating restaurant on the Public Dock in Harriet Island Regional Park. RECOMMENDATIONS: App�ove (A) or Fejett (R� PERSONAL SERVICE CONTRACTS MUST ANSWER THE FOLLOWING QUESTIONS: _PLqNNING COMMISS�ON _CIVIL SERVICE LOMMISSION �, Has thk ye�sonffbm evet woiked unde� a contract to� tfiis depa[tment? CIB COMMITTEE _ YES NO A STAFF 2. Has this persan/firm ever been a ci[y employee? VES NO DISTRICT COUNQL — — 3. Ooes this person/firm possess a skill not normally possessetl by any current ciTy employee? SUPPORTS WHICH COUNdL O&IECTNE? VES NO Ezplain all yes answe�s on separate shee[ antl attach to 9reen sheet. INrtIATiNG PAOBLEM, ISSUE, OPPORiVN1N IWho, WhaA When, Where, Why): The City has undertaken an extensive renovation of Harriet Island Regional Park. With many of these renovations now comp�ete, the City desires to offer amenities for the enjoyment of park goers. Mildred Pierce Inc. has agreed to operate a floating restaurant on the Public Dock. ADVANTAGESIfAPPROVEO' Mildred Pierce will proceed with plans to locate a restaurant at Harriet Island. Related services be available to the public beginning in June 2001. r 8S?� (`,P DISADVANTAGES IF APPROVED: �,Pt�' � �� None DISADVANTAGES IF NOT APPROVED: Mildred Pierce will not proceed with plans to locate a restaurant at Harriet Island. Related services will not be available to the public. TOTAIAMOUNTOFTRANSACTION $%ofi revenues IS5.000 minimum) COST/REVENUEBUDGEfED(CIRCLEONE� YES NO FUNDINGSOURCE Soecial Services Fund - Harriet Island ACTIVITYNUMBER 325-23105 FINqNCIAL INFORMATION: lEXPLAIN) o�_gq � AGREEMENT This AGREEMENT is made and executed on this day of 2001, by and between the City of Saint Paul, a municipal corporation of the State of Minnesota, hereinafter referred to as the °CITY" and Mildred Pierce Inc., a corporation registered in the State of Minnesota, hereinafter refened to as "MILDRED PIERCE". ARTICLE I RECITALS WHEREAS, MILDRED PIERCE desires to operate a FLOATING RESTAURANT on the Vessel commonly known as "shanty boat" (hereina8er referred to as FLOATING RESTAURANT or SHANTY BOAT� at Harriet Island Regional Park owned and operated by the CITY. WHEREAS, the CITY recognizes that this operation would provide a benefit to the public by expanding opportunities 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 MILDRED PIERCE the privilege of operating a floating restaurant adjacent to the CITY's public dock, located in Harriet Island Park at the specific site identified on Exhibit A attached hereto, on the vessel currently known as the SHANTY BOAT. The FLOATING RESTAURANT shall be located within 10 to 15 feet of the location depicted on E�ibit A. II.2. If either of the two vessels currently moored on the Public Dock via individual agreements with the CITY (Covington and Re7oyce as depicted on e�ibit A) is no Ionger occupying its location on the Public Dock and the related agreement with the CITY to operate at that location is voided, it is the intent of the CITY to locate the FLOATING RESTAURANT in the vacated position on the Public Dock. If this circumstance occurs at any time during the term of this AGREEMENT, MILDRED PIERCE agrees to relocate at its cost prior to May 1 of the next operating season. II3. The FLOATING RESTAURANT must be independently anchored in a stationary position adjacent to the Pubiic Dock, and may not use the public dock for any weight bearing attachments or tie-up purpose. Where required, the CITY will assist in obtaining any related permits that are necessary. o�-t1 II.4. FLOATiNG RESTALJRANT customers and personnel shall use the public dock for ingress and egress into the FLOATTNG RESTALJRANT. II.S. In cases of emergency or disaster such as flood or other natural act, MILDRED PIERCE will temporarily vacate its location adjacent to the public dock if d'uected to do so by the CITY's Director of Parks and Recreation, Fire Chief, Police Chief or other CITY o�cial delegated such power due to the emergency. The cost of this relocation shall be borne by MILDRED PIERCE. Further, MILDRED PIERCE will make no ciaim against the CITY for lost business or added expenses due to such temporary relocation unless the CITY was responsible in whole or in part for the need to relocate. II.6. The CITY and MILDRED PIERCE acknowledge that construction projects in the Mississippi River and adjoining pazk areas may be occurring during the term of this AGREEMENT and agree to cooperate with each other if the construction causes the FLOATING RESTAi.3RANT to be relocated temporarily. Such new location shall be as accessible as the original location, as is reasonably possible, and relocation shall be made at the CITY'S expense. In such an event, the CITY's cost shall not exceed $50,000. II.7. Excepting Article II.2, if it is necessary to permanently relocate the FLOATING RESTAURANT from the original location, the CITY shall at all times determine the new site of the FLOATING RESTAURANT at Harriet Island subject to MILDRED PIERCE'S approval. The parties shall negotiate in good faith for an alternate location. If it is the CITY that causes the move, the CITY shall pay for the relocation. In all other cases any relocation costs shall be borne by MILDRED PIERCE. ARTICLE III TERM OF THE AGREEMENT III.1. The term of this AGREEMENT shall be fifteen (15) years, coznmencing upon the execution date of this agreement. IIL2. MILDRED PIERCE may commence operations any time after the renovation is completed as required in Article V.2, but shall commence operation of the restaurant no later than Jtme 15, 2001. III3. Provided there are no uncured defaults of this AGREEMENT, the CITY agrees to enter into good faith negotiations for renewal of the AGREEMENT at the end of the fifteen-year term. o�-t� ARTICLEIV SITE MAINTENANCE N.1. The CITY shall use its best efforts to maiutain and keep the park azea in, about and adjacent to the azea from which the FLOATING RESTAURANT will operate, clear of refuse, rubbish and miscellaneous unsightly storage. IV.2 The CITY is not responsible for snow removal from the Public Dock. MILDRED PIERCE assumes the responsibility to cleaz snow from the dock only as it deems necessary. IV 3 MILDRED PIERCE shall not attach anything to or otherwise alter the Public Dock in any way without the prior authorization of the CITY IV.4 MILDRED PIERCE shall be responsible for any damage that it causes to the Public Dock, excluding normal wear. ARTICLE V RENOVATION-CONSTRUCTION V.l. The parties recognize that renovation and construction is required to make the SHANTY BOAT suitable to operate as a floating restaurant. V.2. MILDRED PIERCE agrees to renovate the SHANTY BOAT at its own expense prior to locaring the vessel at the Public Dock. The renovation shall be complete no later than June15,2001. V 3. The exterior renovation work and major interior renovations identified in part V.2. shali be performed at a location identified by MILDRED PIERCE, which shall not be a park location. V.4. The renovation work identified in part V3 shall be completed prior to the FLOATING RESTAtJ4ZANT being relocated to the Harriet Island site. Interior finishing work, such as painting, carpeting and minor carpenriy as well as the installation of equipment and supplies such as tables and chairs may be completed after the FLOATING RESTAURANT is located on the Public Dock, provided that such work does not in any way encroach upon the public use and enjoyment of the public dock and surrounding park areas. V.S. All costs of renovation, including utilities, shall be the responsibility of MILDRED PIERCE. V.6. MILDRED PIERCE will review its renovation plans with the CITY prior to initiation. CITY maintains the right to approve said plans, said approval not to be unreasonably w�ithheld. MILDRED PIERCE further agrees that any subsequent remodeling or renovation plans will be reviewed with CITY and subject to CITY approval, said approval not to be unreasonably withheld. o�-�q ARTICLE VI PAYMENTS AND REPORTING REQUIREMENTS VI.1. MILDRED PIERCE shall pay the CITY the greater of the following: � $5,000 min;mum flat fee per yeaz; or (1) �2) ��) 1.75% of gross revenues generated by the restaurant over $400,000 for the first three years of operation; 2.0% of the gross revenues generated by the restaurant over $400,000 for years four through eight; and 2.5% of the gross revenues generated by the restaurant over $400,000 for years nine through fifteen. VI.2. The minimum flat fee per year shall be paid by MILDRED PIERCE to the CITY as follows: a. In the first year ofthis AGREEMENT, $2,500 on September 1�` and $2,500 on December 27T'' . � c. AGREEMENT; and $2,500 on July lst of years two (2)- fourteen (14) of this AGREEMENT; $2,500 on October lst of yeazs two (2)- fourteen (14) of this VI3 Any percentage payment due the CITY from the previous year by February 15th of each year. VI.4. MILDRED PIERCE shall keep at the FLOATING RESTAURANT, or at 786 Randolph, or at current principal place of business, a permanent accurate set of books and records which wili accurately reflect and permit the determination 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. VI.S. On or before the fifteenth day of February of each calendaz year under this AGREEMENT, MILDRED PIERCE shali 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 shail be in such form and contain such detait as may be necessary to adequately account to the CITY in accordance with generaliy accepted accounting principles, for the payments due under this AGREEMENT. � o�- � ARTICLE VII OPERATIONS VII.i. The FLOATING RESTAURANT must contain a sit down dining element but may also contain a fast food element. The restaurant will be open to the general public with a family oriented ambience prnnarily offering a casual dining experience that will serve patrons who arrive from land and water. There will be a particular emphasis on serving patrons who are visiting Harriet Island and the waterfront. VII.2. The CITY agrees to afford MILDRED PIERCE the opportunity to provide push cart vending within Harriet Island Regional Park. The exact products to be vended, hours and other operationai considerations being subject to the approval of the CITY, to be structured as a written addendum to this AGREEMENT. MILDRED PIERCE's right to push cart vending is not exclusive. VII.3. MILDRED PIERCE shall operate the FLOATING RESTAURANT in a manner which will be a credit to the City of Saint Paul. a. At a minimum, it is expected that the FLOATING RESTAURANT will operate each year of this AGREEMENT for a minimum of five consecutive months to be between the months of April and October inclusive. During this time, the facility will be open a minimum of six days a week, for a minimum of 6 hours daily, to be between the hours of 12 noon and 8 pm. MILDRED PIERCE may, upon approval of the CITY which shall not be unreasonably withheld, adjust minimum hours and/or seasons of operation in response to changing market conditions. b. The facility housing the FLOATING RESTAURANT shall be keep in good repair both inside and out. Painting, and other minor repairs, wiil be done, as needed, in a timely manner and may be done on site. a The outside of the FLOATING RESTAURANT shall be kept free of trash and debris. d. On-land activities which support the FLOATING RESTAURANT, shall be perforxned in a safe and orderly manner. e. Customers, guests and general public shall be treated in a polite, sensitive and customer friendly manner. VII.4. The FLOATING RESTAURANT located on the public dock is intended to serve the users of Harriet Island Park, therefore off-site catering by the facility shall account for no more than 15% of its annual sales. o �-8� VII.S. The operating hours of the FLOATING RESTAURANT shall be no eazlier than 6:00 am. and no later than the closing hour of Harriet Island Pazk, which is currendy 11:00 p.m. VII.6. MILDRED PIERCE may erect signage to advertise and identify the FLOATING RESTAURANT. Such signage shall be submitted to the CITY for approval for desib , content and location prior to it being erected. The CITY reserves the right to approve of any signage, and may require that it be consistent in appearance with other signage within the pazk and further, may it require that it be incorporated into the CITY's park signage. VII.7. The patrons of the FLOATING RESTAURANT shall park their vehicles at a location determined by the CITY. The patrons of MILDRED PIERCE shall have access to public parking near the public dock. The CITY shall wark with MILDRED PIERCE in identifying alternate pazking locations that are reasonably close to the public dock for use for on occasions when parking lots at Harriet Island are full. ARTICLE IX DEFAULT AND CURE VIII.1. If MILDRED PIERCE fails to comply with any material term of this AGREEMENT, the CITY shall have the option to declare this AGREEMENT in default. If the CITY chooses to declare this AGREEMENT in default for a breach by MILDRED PIERCE, it shall provide written notification of the breach by registered mail. If MILDRED PIERCE 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, MILDRED PIERCE shall have the option to declare this AGREEMENT in default. If MILDRED PIERCE chooses to declare this AGREEMENT in default for a breach by the CITY, it shall 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 MILDRED PIERCE shall 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 IX. L This AGREEMENT shali automatically terminate at the end of the fifteenth year term unless the parties agree in writing to extend it. IX.2. If MILDRED PIERCE fails to commence operation of the restaurant by June 15, 2001, this AGREEMENT shall automatically be terminated unless: 0�-�'9 a. The inability to commence operations by June 25, 2001 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 MILDRED PIERCE such as labor disputes, acts of God or other events listed in Article XVI3. IX3. If this AGREEMENT is terminated by the CITY for failure to open by June 15, 2001, MILDRED PIERCE will make no claim against the CITY due to MILDRED PIERCE'S failure to implement its restaurant operation unless the CITY' S conduct has prevented it from opening. IX.4. Notwithstanding-any other provision herein, this AGREEMENT shall automatically terminate without the right to cure upon the occurrence of any of the events described below; a. A petition by or against MILDRED PIBRCE under the bankruptcy laws of the United States, which petition is not dismissed within ninety (90) days from the date of such filing; and b. The assignment by MILDRED PIERCE of its assets for the benefit of creditors under any state insolvency laws. IX.S. Upon termination of this AGREEMENT, MILDRED PIERCE shall vacate the location used by the FLOATING RESTAURANT 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.l. The FLOATING RESTAURANT may be self-operated by MILDRED PIERCE, or by another entity or person with the express written approval of the CITY. X.2. If MILDRED PIERCE 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 financial terms; and (iv) such financial information as the CITY may reasonably request concerning the proposed third-party. MILDRED PIECE shall pay the CITY a reasonable fee for the CITY' S expenses, inciuding attomeys' fees, in reviewing such proposed subiease or transfer and in reviewing the proposed third-party's financial ability to assume the AGREEMENT, said fee not to exceed $500.00. 7 o �-,� X3. If there is a sub-lease or sale to any other parry(ies), the other party(ies) and MILDRED PIERCE shatl submit to the CITY their plans for the operation of the FLOATING RESTAUR ANT. This plan must include: operating schedule, menu(s) any entertaimnent pians, financial structure and references in the case of a sale or lease, management structure and any plans to remodeUredesign the boat. T'his shall occur before any sale or lease is completed. X.4. In the event of a sub-lease of the FLOATING RESTAURANT operation, MILDRED PIERCE 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. ARTICL� XI COMPLIANCE WITH LAW XI.1. MILDRED PIERCE, 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 grounds 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 shall be excluded from participating in, be denied the benefits of or be otherwise subjected to discrimination in the use of said facilities. b. No discrimination shall 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 facilities and services provided for public accommodations (such as eating, rest and recreation) constructed or operated on the FLOATING RESTAURANT, and; d. MILDRED PIERCE shall use the premises in compliance with all other requirements imposed pursuant to the Saint Paul Legistative Code Chapter 183. XI.2. MILDRED PIERCE shall keep and observe all State, Local and Federal laws, rules and regulations. a. In regards to the above, MILDRED PIERCE shall be responsible to obtain and keep current any licenses and permits needed to operate the facility. This AGREEMENT does not exempt MILDRED PIERCE or FLOATING RESTAURANT customers from park rules and regulations, except as may be provided elsewhere in this AGREEMENT. � �\-� XI3. MILDRED PIERCE shall recognize the authority of the CITY's Licencing Division, and agrees to obtain the appropriate restaurant licences and liquor licences prior to commencing operation. ARTICLE XII UTILITIES AND MAINTENANCE XII.1. Any ongoing operations or maintenance expenses shall be MILDRED PIERCE' S responsibility. XII.2. MILDRED PIERCE shall pay all utility hook-up and usage costs associated with their enterprise. This includes: water, electrical, gas, sewer, telephone, cable television and any other such service. MILDRED PIERCE 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 identified on E�ibit A or at the location currently occupied by either of the two vessels current moored at the public dock. This provision is subject to Article II.S. XII3 MILbRED PIERCE acknowledges that the CITY has represented that at present there are no available utility services to readily access for its use at or near the Public Dock. MILDRED PIERCE has represented that if no services are available at the time when the FLOATING RESTAURANT is located at Harriet Island, that it will acquire utility services via the services currentiy in place serving the MV Covington. The CITY beazs no responsibility related to any such arrangement between MILDRED PIERCE and River Valley Preservation, the agent which operates the MV Covington at this location under agreement with the CITY. XII.4. MILDRED PIERCE shall dispose of all rubbish and refuse generated in connection with its operation at its cost but shall not be responsible far the upkeep, maintenance or repair of park properiy used in connection with the enterprise. The CITY shall provide a location at no cost for MILDRED PIERCE to place a trash dumpster adjacent to the parking area in which to dispose of its rubbish and refuse. The CITY shall have the right to approve of the type and size of dumpster. ARTICLE XIII INDEMNIFICATION XIII.1. That MILDRED PIERCE hereby agrees to hold the CITY and all of its officers, agents and employees hannless and indemnified from and against any penalty, damage or charge imposed for any violation of laws ar ardinances that are occasioned by the actions of MILDRED PIERCE or those hold or operating under MILDRED PIERCE. In addition thereto, MILDRED PIERCE 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 MILDRED PIERCE on or about the premises used by MILDRED PIERCE pursuant to the privileges granted hereunder which may cause injury to any person or property. 0 0\ -� ARTICLE XIV INSURANCE XIV.1. As additional assurance of such indemnification, but not in lieu thereof, MILDRED PIERCE sha12 obtain and pay the premiums upon a general liability insurance policy(ies) which will name the CITY as an additional insured. Such policy(ies) shall cover injury to persons or properry arising out of the operation of MILDRED PIERCE'S business with limits of not less than $40,000 with respect to properry loss, $300,000 with respect to injury or death to any one person and $1,000,000 for any number of clauns arising out of a single occurrence. If the maximum liability is modified by the legislature, MILDRED PIERCE shall be required to provide coverage adequate to cover up to the limits of the CITY' S masimum liabiliry. The policy(ies) of insurance shatl be submitted to the City Attorney for the CITY for approval and shall be filed with the Department 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 perxnit cancellation without 30 days prior written notice to the CITY. XIV.2. That in the event that MILDRED PIERCE determines to sell beer and/or wine or 2iquor, MILDRED PIERCE 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) sha1T be filed with the Department of Finance and Management Services prior to the serving of beer and/or wine or liquor by MILDRED PIERCE. Such insuzance policy(ies) shall be kept in force diuing the entire period that this AGREEMENT or any renewal thereof is in effect and shall contain provision which will not permit cancellation without 30 days przor �vritten notice Yo the CITY. ARTICLE XV EVENTS AND CONSTRUCTION XV.1. Construction: That the CITY will not be responsibie for lack of revenue due to construction work or projects of any kinc3 in proximity to the FLOATING RESTAURANT. XV.2. Events: The CITY shall notify MILDRED PIERCE by March 1�` of each yeaz of any special events planned for Harriet Island that may cause a disruption in the activities planned for the FLOATING RESTAURANT. MILDRED PIERCE recognizes that the CITY maintains the option to schedule special events after the initial March 1 annual notification date. To minimize the potential impacts of the special event as it is relates to the FLOATING RESTAUFtANT, the CITY will provide prompt txorification to and consultation wzth MILDRED PIERCE in the event of any pianned additions to the special event schedule. The CITY retains the right to schedule such special events over the objection of the MILDRED PIERCE if the parties are unable to cooperatively agree on such scheduling. [[1] o�_�q ARTICLE XVI ADDITIONAL PROVISIONS XVI.1. Waiver: MILDRED PIERCE 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. XVT.2. Force Majeure: The failure of performance or delays by either pariy shall be excused if caused by or if arising out of acts of God, sirikes, labor disputes, acts of the public enemy, wazs, riots, floods, storms, material shortages, act of State or Federal government and any other causes whether similar or dissimilar, which are not reasonably within the control of the parry claiming Force Majeure. XVL3. No Exclusivity: No provisions of this AGREEMENT may be construed as giving MILDRED PIERCE exclusive rights to this type of enterprise or any other enterprise in that portion of the river where the enterprise is located. The CITY shall have the right to evaluate and place other business ventures within the proximiry of MILDRED PIERCE. XVI.4. 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: Victor A. Wittgenstein, Jr. Director of Parks and Recreation 25 West 4"' Street, Room 300 Saint Paul, Minnesota 55102 to MILDRED PIERCE: Shelagh Connolly 786 Randolph Saint Paul, Minnesota 55102 The above addresses or persons to whom notice may be delivered or sent may be changed from tiine to time by notice under this AGREEMENT. XVI.S. Independent Contractor: The parties hereto agree that they are acting as independent contractors and that nothing in tlus AGREEMENT is intended to create, nor shali anything herein be construed or interpreted as creating a partnership between the City and MILDRED PIERCE except as expressly agreed to herein. Each party shall be responsible for its own separate debts, obligations and other liabiliYies. i1 �1-� XVI. Amendmenfs: This AGREEMENT may by amended by the mutual consent of the parties heteto. Amendments are made effective upon the written a�eement of the Director of Parks and Recreation and the president of MILDRED PIERCE. XVI.�. Severability: If any provision of this AGREEMENT shall be declazed invalid for any reason and such provision dies not destroy the objects ar�d ptsposes of this AGREEMENT or make unfeasible the performance of the remaining terms and condirions of this AGREEMENT, such provision shatl be deemed severable and the remaining terms and provisions of this AGREEMENT shall be enforced in accordance with their terms. IN WITNESS VJHEREOF, 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: Shelagh Connolly, President Mildred Pierce Inc. CITY OF SAINT PAUL: The Honorable Norm Coleman, Mayor Victor A. WittgensYein, Jr., Director of Pazks and Recreation Director, Department of Financial Services G:1SP\�VP\Agreemnts�Miidced Pierce Floating Restaurant.wpd IZ dVPI[ �,LINI�VA �SV�`I �a��Id Q��Q`II�II 201SS 'NA 'I(IYd 7S OOE! J33NJS NJ,4 ,1S3Y SZ xAN,W TIVIi Adl� 00£ NP11Yd8J8�! aNY SANVd d0 NOISUtU , 4 H L:C � x w b�-Pq / � �� as = n�u� r�azvas NV'Id ?I�OQ ,I�la zo��s •xx tinra •�s oost a�a�us �> ,� sa X3NNV TfYN Zl,l� 00£ NOLlPdN�38 aNY SAUYd 30 NOISlAi� d �5��`I ��Id Q��Q'IINi x,z�,� T�uot�aN pu�Tsi �at�z,z�u .��— F W V Q' W � Q W � W Q � � Q � W J Q � W � � H �/� L1� H n � / U l�G� Q Q_ � F— Q J � � � z� J J � Q �� ¢ 3 Z ;' ❑ ' �� - �, U, ; L � � i ; ! ` Y - U ,� O ! q ; ` � � j ti f t � f � � ; . _. 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C � , � � , , � ORIGINAL Presented By Referxed to 1� 2 3 4 5 Council File # O\-S'9 Green Sheet # 10GGG� � RESOLUTION SAINT PAUL, MINN O �� a Committee: Date WHEREAS, the City has undertaken various projects related to the renovation of Harriet Island Regional Park, and WHEREAS, with many renovations now completed the City desires to provide amenities for the enjoyment of park goers, and 6 WHEREAS, Mildred Pierce Inc. has agreed to locate and 7 operate a floating restaurant at Harriet Island as an amenity 8 serving park users, and 9 WHEREAS, the proposed restaurant facility will begin 10 operations in June 2001; now, therefore, be it 11 RESOLVED, that proper City officials and staff are hereby 12 directed and authorized to enter into the attached lease 13 agreement with Mildred Pierce Inc for locating and operating a 14 floating restaurant on the Public Dock in Harriet Island Regional 15 Park. 16 17 Requested by: Adopted by Council: Date �� p` , � Adoption Certi£ied by Council Secretary By �� 2 c�CS�' Approved by Mayor: Date: By: By: _S�� Approved by Mayor for Submission to Council By: Form Approved by City Attorney V�rVO DEPA0.TMENT/OFFICE/COUNCIL DNTEINITIATED GREEN SHEET NO. 106663 Parks and Recreation 1/31/01 COMACT PERSON AND PHONE INITIAUDATE INITIAVDATE Mike Hahm 266-6444 �.►h, l oeeaarn��rowecroR 4 CITYCOUNCIL ASSIGN NUMBER FO Z CIiY ATTORNEY — CIN CLFRK MUST BE ON COUNCIL AGENDA BY (DATE) NOUTING ORDEfl BUDGET DIRECTOR FIN. & MGT. SERVICE$ OIR. 2/7/01 3 MAVOR (OR ASSISTANT) 5 Parks & Recreation - 300 CHA TOTAL t OF SIGNATURE PAGES � (CLIP ALL LOCATIONS FOR SIGNAiVRE� ACTIOPo REQUESTED: Authorizing City Officials and staff to enter into Lease Agreement with the Mildred Pierce Inc. for locating a floating restaurant on the Public Dock in Harriet Island Regional Park. RECOMMENDATIONS: App�ove (A) or Fejett (R� PERSONAL SERVICE CONTRACTS MUST ANSWER THE FOLLOWING QUESTIONS: _PLqNNING COMMISS�ON _CIVIL SERVICE LOMMISSION �, Has thk ye�sonffbm evet woiked unde� a contract to� tfiis depa[tment? CIB COMMITTEE _ YES NO A STAFF 2. Has this persan/firm ever been a ci[y employee? VES NO DISTRICT COUNQL — — 3. Ooes this person/firm possess a skill not normally possessetl by any current ciTy employee? SUPPORTS WHICH COUNdL O&IECTNE? VES NO Ezplain all yes answe�s on separate shee[ antl attach to 9reen sheet. INrtIATiNG PAOBLEM, ISSUE, OPPORiVN1N IWho, WhaA When, Where, Why): The City has undertaken an extensive renovation of Harriet Island Regional Park. With many of these renovations now comp�ete, the City desires to offer amenities for the enjoyment of park goers. Mildred Pierce Inc. has agreed to operate a floating restaurant on the Public Dock. ADVANTAGESIfAPPROVEO' Mildred Pierce will proceed with plans to locate a restaurant at Harriet Island. Related services be available to the public beginning in June 2001. r 8S?� (`,P DISADVANTAGES IF APPROVED: �,Pt�' � �� None DISADVANTAGES IF NOT APPROVED: Mildred Pierce will not proceed with plans to locate a restaurant at Harriet Island. Related services will not be available to the public. TOTAIAMOUNTOFTRANSACTION $%ofi revenues IS5.000 minimum) COST/REVENUEBUDGEfED(CIRCLEONE� YES NO FUNDINGSOURCE Soecial Services Fund - Harriet Island ACTIVITYNUMBER 325-23105 FINqNCIAL INFORMATION: lEXPLAIN) o�_gq � AGREEMENT This AGREEMENT is made and executed on this day of 2001, by and between the City of Saint Paul, a municipal corporation of the State of Minnesota, hereinafter referred to as the °CITY" and Mildred Pierce Inc., a corporation registered in the State of Minnesota, hereinafter refened to as "MILDRED PIERCE". ARTICLE I RECITALS WHEREAS, MILDRED PIERCE desires to operate a FLOATING RESTAURANT on the Vessel commonly known as "shanty boat" (hereina8er referred to as FLOATING RESTAURANT or SHANTY BOAT� at Harriet Island Regional Park owned and operated by the CITY. WHEREAS, the CITY recognizes that this operation would provide a benefit to the public by expanding opportunities 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 MILDRED PIERCE the privilege of operating a floating restaurant adjacent to the CITY's public dock, located in Harriet Island Park at the specific site identified on Exhibit A attached hereto, on the vessel currently known as the SHANTY BOAT. The FLOATING RESTAURANT shall be located within 10 to 15 feet of the location depicted on E�ibit A. II.2. If either of the two vessels currently moored on the Public Dock via individual agreements with the CITY (Covington and Re7oyce as depicted on e�ibit A) is no Ionger occupying its location on the Public Dock and the related agreement with the CITY to operate at that location is voided, it is the intent of the CITY to locate the FLOATING RESTAURANT in the vacated position on the Public Dock. If this circumstance occurs at any time during the term of this AGREEMENT, MILDRED PIERCE agrees to relocate at its cost prior to May 1 of the next operating season. II3. The FLOATING RESTAURANT must be independently anchored in a stationary position adjacent to the Pubiic Dock, and may not use the public dock for any weight bearing attachments or tie-up purpose. Where required, the CITY will assist in obtaining any related permits that are necessary. o�-t1 II.4. FLOATiNG RESTALJRANT customers and personnel shall use the public dock for ingress and egress into the FLOATTNG RESTALJRANT. II.S. In cases of emergency or disaster such as flood or other natural act, MILDRED PIERCE will temporarily vacate its location adjacent to the public dock if d'uected to do so by the CITY's Director of Parks and Recreation, Fire Chief, Police Chief or other CITY o�cial delegated such power due to the emergency. The cost of this relocation shall be borne by MILDRED PIERCE. Further, MILDRED PIERCE will make no ciaim against the CITY for lost business or added expenses due to such temporary relocation unless the CITY was responsible in whole or in part for the need to relocate. II.6. The CITY and MILDRED PIERCE acknowledge that construction projects in the Mississippi River and adjoining pazk areas may be occurring during the term of this AGREEMENT and agree to cooperate with each other if the construction causes the FLOATING RESTAi.3RANT to be relocated temporarily. Such new location shall be as accessible as the original location, as is reasonably possible, and relocation shall be made at the CITY'S expense. In such an event, the CITY's cost shall not exceed $50,000. II.7. Excepting Article II.2, if it is necessary to permanently relocate the FLOATING RESTAURANT from the original location, the CITY shall at all times determine the new site of the FLOATING RESTAURANT at Harriet Island subject to MILDRED PIERCE'S approval. The parties shall negotiate in good faith for an alternate location. If it is the CITY that causes the move, the CITY shall pay for the relocation. In all other cases any relocation costs shall be borne by MILDRED PIERCE. ARTICLE III TERM OF THE AGREEMENT III.1. The term of this AGREEMENT shall be fifteen (15) years, coznmencing upon the execution date of this agreement. IIL2. MILDRED PIERCE may commence operations any time after the renovation is completed as required in Article V.2, but shall commence operation of the restaurant no later than Jtme 15, 2001. III3. Provided there are no uncured defaults of this AGREEMENT, the CITY agrees to enter into good faith negotiations for renewal of the AGREEMENT at the end of the fifteen-year term. o�-t� ARTICLEIV SITE MAINTENANCE N.1. The CITY shall use its best efforts to maiutain and keep the park azea in, about and adjacent to the azea from which the FLOATING RESTAURANT will operate, clear of refuse, rubbish and miscellaneous unsightly storage. IV.2 The CITY is not responsible for snow removal from the Public Dock. MILDRED PIERCE assumes the responsibility to cleaz snow from the dock only as it deems necessary. IV 3 MILDRED PIERCE shall not attach anything to or otherwise alter the Public Dock in any way without the prior authorization of the CITY IV.4 MILDRED PIERCE shall be responsible for any damage that it causes to the Public Dock, excluding normal wear. ARTICLE V RENOVATION-CONSTRUCTION V.l. The parties recognize that renovation and construction is required to make the SHANTY BOAT suitable to operate as a floating restaurant. V.2. MILDRED PIERCE agrees to renovate the SHANTY BOAT at its own expense prior to locaring the vessel at the Public Dock. The renovation shall be complete no later than June15,2001. V 3. The exterior renovation work and major interior renovations identified in part V.2. shali be performed at a location identified by MILDRED PIERCE, which shall not be a park location. V.4. The renovation work identified in part V3 shall be completed prior to the FLOATING RESTAtJ4ZANT being relocated to the Harriet Island site. Interior finishing work, such as painting, carpeting and minor carpenriy as well as the installation of equipment and supplies such as tables and chairs may be completed after the FLOATING RESTAURANT is located on the Public Dock, provided that such work does not in any way encroach upon the public use and enjoyment of the public dock and surrounding park areas. V.S. All costs of renovation, including utilities, shall be the responsibility of MILDRED PIERCE. V.6. MILDRED PIERCE will review its renovation plans with the CITY prior to initiation. CITY maintains the right to approve said plans, said approval not to be unreasonably w�ithheld. MILDRED PIERCE further agrees that any subsequent remodeling or renovation plans will be reviewed with CITY and subject to CITY approval, said approval not to be unreasonably withheld. o�-�q ARTICLE VI PAYMENTS AND REPORTING REQUIREMENTS VI.1. MILDRED PIERCE shall pay the CITY the greater of the following: � $5,000 min;mum flat fee per yeaz; or (1) �2) ��) 1.75% of gross revenues generated by the restaurant over $400,000 for the first three years of operation; 2.0% of the gross revenues generated by the restaurant over $400,000 for years four through eight; and 2.5% of the gross revenues generated by the restaurant over $400,000 for years nine through fifteen. VI.2. The minimum flat fee per year shall be paid by MILDRED PIERCE to the CITY as follows: a. In the first year ofthis AGREEMENT, $2,500 on September 1�` and $2,500 on December 27T'' . � c. AGREEMENT; and $2,500 on July lst of years two (2)- fourteen (14) of this AGREEMENT; $2,500 on October lst of yeazs two (2)- fourteen (14) of this VI3 Any percentage payment due the CITY from the previous year by February 15th of each year. VI.4. MILDRED PIERCE shall keep at the FLOATING RESTAURANT, or at 786 Randolph, or at current principal place of business, a permanent accurate set of books and records which wili accurately reflect and permit the determination 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. VI.S. On or before the fifteenth day of February of each calendaz year under this AGREEMENT, MILDRED PIERCE shali 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 shail be in such form and contain such detait as may be necessary to adequately account to the CITY in accordance with generaliy accepted accounting principles, for the payments due under this AGREEMENT. � o�- � ARTICLE VII OPERATIONS VII.i. The FLOATING RESTAURANT must contain a sit down dining element but may also contain a fast food element. The restaurant will be open to the general public with a family oriented ambience prnnarily offering a casual dining experience that will serve patrons who arrive from land and water. There will be a particular emphasis on serving patrons who are visiting Harriet Island and the waterfront. VII.2. The CITY agrees to afford MILDRED PIERCE the opportunity to provide push cart vending within Harriet Island Regional Park. The exact products to be vended, hours and other operationai considerations being subject to the approval of the CITY, to be structured as a written addendum to this AGREEMENT. MILDRED PIERCE's right to push cart vending is not exclusive. VII.3. MILDRED PIERCE shall operate the FLOATING RESTAURANT in a manner which will be a credit to the City of Saint Paul. a. At a minimum, it is expected that the FLOATING RESTAURANT will operate each year of this AGREEMENT for a minimum of five consecutive months to be between the months of April and October inclusive. During this time, the facility will be open a minimum of six days a week, for a minimum of 6 hours daily, to be between the hours of 12 noon and 8 pm. MILDRED PIERCE may, upon approval of the CITY which shall not be unreasonably withheld, adjust minimum hours and/or seasons of operation in response to changing market conditions. b. The facility housing the FLOATING RESTAURANT shall be keep in good repair both inside and out. Painting, and other minor repairs, wiil be done, as needed, in a timely manner and may be done on site. a The outside of the FLOATING RESTAURANT shall be kept free of trash and debris. d. On-land activities which support the FLOATING RESTAURANT, shall be perforxned in a safe and orderly manner. e. Customers, guests and general public shall be treated in a polite, sensitive and customer friendly manner. VII.4. The FLOATING RESTAURANT located on the public dock is intended to serve the users of Harriet Island Park, therefore off-site catering by the facility shall account for no more than 15% of its annual sales. o �-8� VII.S. The operating hours of the FLOATING RESTAURANT shall be no eazlier than 6:00 am. and no later than the closing hour of Harriet Island Pazk, which is currendy 11:00 p.m. VII.6. MILDRED PIERCE may erect signage to advertise and identify the FLOATING RESTAURANT. Such signage shall be submitted to the CITY for approval for desib , content and location prior to it being erected. The CITY reserves the right to approve of any signage, and may require that it be consistent in appearance with other signage within the pazk and further, may it require that it be incorporated into the CITY's park signage. VII.7. The patrons of the FLOATING RESTAURANT shall park their vehicles at a location determined by the CITY. The patrons of MILDRED PIERCE shall have access to public parking near the public dock. The CITY shall wark with MILDRED PIERCE in identifying alternate pazking locations that are reasonably close to the public dock for use for on occasions when parking lots at Harriet Island are full. ARTICLE IX DEFAULT AND CURE VIII.1. If MILDRED PIERCE fails to comply with any material term of this AGREEMENT, the CITY shall have the option to declare this AGREEMENT in default. If the CITY chooses to declare this AGREEMENT in default for a breach by MILDRED PIERCE, it shall provide written notification of the breach by registered mail. If MILDRED PIERCE 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, MILDRED PIERCE shall have the option to declare this AGREEMENT in default. If MILDRED PIERCE chooses to declare this AGREEMENT in default for a breach by the CITY, it shall 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 MILDRED PIERCE shall 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 IX. L This AGREEMENT shali automatically terminate at the end of the fifteenth year term unless the parties agree in writing to extend it. IX.2. If MILDRED PIERCE fails to commence operation of the restaurant by June 15, 2001, this AGREEMENT shall automatically be terminated unless: 0�-�'9 a. The inability to commence operations by June 25, 2001 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 MILDRED PIERCE such as labor disputes, acts of God or other events listed in Article XVI3. IX3. If this AGREEMENT is terminated by the CITY for failure to open by June 15, 2001, MILDRED PIERCE will make no claim against the CITY due to MILDRED PIERCE'S failure to implement its restaurant operation unless the CITY' S conduct has prevented it from opening. IX.4. Notwithstanding-any other provision herein, this AGREEMENT shall automatically terminate without the right to cure upon the occurrence of any of the events described below; a. A petition by or against MILDRED PIBRCE under the bankruptcy laws of the United States, which petition is not dismissed within ninety (90) days from the date of such filing; and b. The assignment by MILDRED PIERCE of its assets for the benefit of creditors under any state insolvency laws. IX.S. Upon termination of this AGREEMENT, MILDRED PIERCE shall vacate the location used by the FLOATING RESTAURANT 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.l. The FLOATING RESTAURANT may be self-operated by MILDRED PIERCE, or by another entity or person with the express written approval of the CITY. X.2. If MILDRED PIERCE 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 financial terms; and (iv) such financial information as the CITY may reasonably request concerning the proposed third-party. MILDRED PIECE shall pay the CITY a reasonable fee for the CITY' S expenses, inciuding attomeys' fees, in reviewing such proposed subiease or transfer and in reviewing the proposed third-party's financial ability to assume the AGREEMENT, said fee not to exceed $500.00. 7 o �-,� X3. If there is a sub-lease or sale to any other parry(ies), the other party(ies) and MILDRED PIERCE shatl submit to the CITY their plans for the operation of the FLOATING RESTAUR ANT. This plan must include: operating schedule, menu(s) any entertaimnent pians, financial structure and references in the case of a sale or lease, management structure and any plans to remodeUredesign the boat. T'his shall occur before any sale or lease is completed. X.4. In the event of a sub-lease of the FLOATING RESTAURANT operation, MILDRED PIERCE 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. ARTICL� XI COMPLIANCE WITH LAW XI.1. MILDRED PIERCE, 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 grounds 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 shall be excluded from participating in, be denied the benefits of or be otherwise subjected to discrimination in the use of said facilities. b. No discrimination shall 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 facilities and services provided for public accommodations (such as eating, rest and recreation) constructed or operated on the FLOATING RESTAURANT, and; d. MILDRED PIERCE shall use the premises in compliance with all other requirements imposed pursuant to the Saint Paul Legistative Code Chapter 183. XI.2. MILDRED PIERCE shall keep and observe all State, Local and Federal laws, rules and regulations. a. In regards to the above, MILDRED PIERCE shall be responsible to obtain and keep current any licenses and permits needed to operate the facility. This AGREEMENT does not exempt MILDRED PIERCE or FLOATING RESTAURANT customers from park rules and regulations, except as may be provided elsewhere in this AGREEMENT. � �\-� XI3. MILDRED PIERCE shall recognize the authority of the CITY's Licencing Division, and agrees to obtain the appropriate restaurant licences and liquor licences prior to commencing operation. ARTICLE XII UTILITIES AND MAINTENANCE XII.1. Any ongoing operations or maintenance expenses shall be MILDRED PIERCE' S responsibility. XII.2. MILDRED PIERCE shall pay all utility hook-up and usage costs associated with their enterprise. This includes: water, electrical, gas, sewer, telephone, cable television and any other such service. MILDRED PIERCE 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 identified on E�ibit A or at the location currently occupied by either of the two vessels current moored at the public dock. This provision is subject to Article II.S. XII3 MILbRED PIERCE acknowledges that the CITY has represented that at present there are no available utility services to readily access for its use at or near the Public Dock. MILDRED PIERCE has represented that if no services are available at the time when the FLOATING RESTAURANT is located at Harriet Island, that it will acquire utility services via the services currentiy in place serving the MV Covington. The CITY beazs no responsibility related to any such arrangement between MILDRED PIERCE and River Valley Preservation, the agent which operates the MV Covington at this location under agreement with the CITY. XII.4. MILDRED PIERCE shall dispose of all rubbish and refuse generated in connection with its operation at its cost but shall not be responsible far the upkeep, maintenance or repair of park properiy used in connection with the enterprise. The CITY shall provide a location at no cost for MILDRED PIERCE to place a trash dumpster adjacent to the parking area in which to dispose of its rubbish and refuse. The CITY shall have the right to approve of the type and size of dumpster. ARTICLE XIII INDEMNIFICATION XIII.1. That MILDRED PIERCE hereby agrees to hold the CITY and all of its officers, agents and employees hannless and indemnified from and against any penalty, damage or charge imposed for any violation of laws ar ardinances that are occasioned by the actions of MILDRED PIERCE or those hold or operating under MILDRED PIERCE. In addition thereto, MILDRED PIERCE 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 MILDRED PIERCE on or about the premises used by MILDRED PIERCE pursuant to the privileges granted hereunder which may cause injury to any person or property. 0 0\ -� ARTICLE XIV INSURANCE XIV.1. As additional assurance of such indemnification, but not in lieu thereof, MILDRED PIERCE sha12 obtain and pay the premiums upon a general liability insurance policy(ies) which will name the CITY as an additional insured. Such policy(ies) shall cover injury to persons or properry arising out of the operation of MILDRED PIERCE'S business with limits of not less than $40,000 with respect to properry loss, $300,000 with respect to injury or death to any one person and $1,000,000 for any number of clauns arising out of a single occurrence. If the maximum liability is modified by the legislature, MILDRED PIERCE shall be required to provide coverage adequate to cover up to the limits of the CITY' S masimum liabiliry. The policy(ies) of insurance shatl be submitted to the City Attorney for the CITY for approval and shall be filed with the Department 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 perxnit cancellation without 30 days prior written notice to the CITY. XIV.2. That in the event that MILDRED PIERCE determines to sell beer and/or wine or 2iquor, MILDRED PIERCE 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) sha1T be filed with the Department of Finance and Management Services prior to the serving of beer and/or wine or liquor by MILDRED PIERCE. Such insuzance policy(ies) shall be kept in force diuing the entire period that this AGREEMENT or any renewal thereof is in effect and shall contain provision which will not permit cancellation without 30 days przor �vritten notice Yo the CITY. ARTICLE XV EVENTS AND CONSTRUCTION XV.1. Construction: That the CITY will not be responsibie for lack of revenue due to construction work or projects of any kinc3 in proximity to the FLOATING RESTAURANT. XV.2. Events: The CITY shall notify MILDRED PIERCE by March 1�` of each yeaz of any special events planned for Harriet Island that may cause a disruption in the activities planned for the FLOATING RESTAURANT. MILDRED PIERCE recognizes that the CITY maintains the option to schedule special events after the initial March 1 annual notification date. To minimize the potential impacts of the special event as it is relates to the FLOATING RESTAUFtANT, the CITY will provide prompt txorification to and consultation wzth MILDRED PIERCE in the event of any pianned additions to the special event schedule. The CITY retains the right to schedule such special events over the objection of the MILDRED PIERCE if the parties are unable to cooperatively agree on such scheduling. [[1] o�_�q ARTICLE XVI ADDITIONAL PROVISIONS XVI.1. Waiver: MILDRED PIERCE 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. XVT.2. Force Majeure: The failure of performance or delays by either pariy shall be excused if caused by or if arising out of acts of God, sirikes, labor disputes, acts of the public enemy, wazs, riots, floods, storms, material shortages, act of State or Federal government and any other causes whether similar or dissimilar, which are not reasonably within the control of the parry claiming Force Majeure. XVL3. No Exclusivity: No provisions of this AGREEMENT may be construed as giving MILDRED PIERCE exclusive rights to this type of enterprise or any other enterprise in that portion of the river where the enterprise is located. The CITY shall have the right to evaluate and place other business ventures within the proximiry of MILDRED PIERCE. XVI.4. 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: Victor A. Wittgenstein, Jr. Director of Parks and Recreation 25 West 4"' Street, Room 300 Saint Paul, Minnesota 55102 to MILDRED PIERCE: Shelagh Connolly 786 Randolph Saint Paul, Minnesota 55102 The above addresses or persons to whom notice may be delivered or sent may be changed from tiine to time by notice under this AGREEMENT. XVI.S. Independent Contractor: The parties hereto agree that they are acting as independent contractors and that nothing in tlus AGREEMENT is intended to create, nor shali anything herein be construed or interpreted as creating a partnership between the City and MILDRED PIERCE except as expressly agreed to herein. Each party shall be responsible for its own separate debts, obligations and other liabiliYies. i1 �1-� XVI. Amendmenfs: This AGREEMENT may by amended by the mutual consent of the parties heteto. Amendments are made effective upon the written a�eement of the Director of Parks and Recreation and the president of MILDRED PIERCE. XVI.�. Severability: If any provision of this AGREEMENT shall be declazed invalid for any reason and such provision dies not destroy the objects ar�d ptsposes of this AGREEMENT or make unfeasible the performance of the remaining terms and condirions of this AGREEMENT, such provision shatl be deemed severable and the remaining terms and provisions of this AGREEMENT shall be enforced in accordance with their terms. IN WITNESS VJHEREOF, 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: Shelagh Connolly, President Mildred Pierce Inc. CITY OF SAINT PAUL: The Honorable Norm Coleman, Mayor Victor A. WittgensYein, Jr., Director of Pazks and Recreation Director, Department of Financial Services G:1SP\�VP\Agreemnts�Miidced Pierce Floating Restaurant.wpd IZ dVPI[ �,LINI�VA �SV�`I �a��Id Q��Q`II�II 201SS 'NA 'I(IYd 7S OOE! J33NJS NJ,4 ,1S3Y SZ xAN,W TIVIi Adl� 00£ NP11Yd8J8�! aNY SANVd d0 NOISUtU , 4 H L:C � x w b�-Pq / � �� as = n�u� r�azvas NV'Id ?I�OQ ,I�la zo��s •xx tinra •�s oost a�a�us �> ,� sa X3NNV TfYN Zl,l� 00£ NOLlPdN�38 aNY SAUYd 30 NOISlAi� d �5��`I ��Id Q��Q'IINi x,z�,� T�uot�aN pu�Tsi �at�z,z�u .��— F W V Q' W � Q W � W Q � � Q � W J Q � W � � H �/� L1� H n � / U l�G� Q Q_ � F— Q J � � � z� J J � Q �� ¢ 3 Z ;' ❑ ' �� - �, U, ; L � � i ; ! ` Y - U ,� O ! q ; ` � � j ti f t � f � � ; . _. 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C � , � � , , � ORIGINAL Presented By Referxed to 1� 2 3 4 5 Council File # O\-S'9 Green Sheet # 10GGG� � RESOLUTION SAINT PAUL, MINN O �� a Committee: Date WHEREAS, the City has undertaken various projects related to the renovation of Harriet Island Regional Park, and WHEREAS, with many renovations now completed the City desires to provide amenities for the enjoyment of park goers, and 6 WHEREAS, Mildred Pierce Inc. has agreed to locate and 7 operate a floating restaurant at Harriet Island as an amenity 8 serving park users, and 9 WHEREAS, the proposed restaurant facility will begin 10 operations in June 2001; now, therefore, be it 11 RESOLVED, that proper City officials and staff are hereby 12 directed and authorized to enter into the attached lease 13 agreement with Mildred Pierce Inc for locating and operating a 14 floating restaurant on the Public Dock in Harriet Island Regional 15 Park. 16 17 Requested by: Adopted by Council: Date �� p` , � Adoption Certi£ied by Council Secretary By �� 2 c�CS�' Approved by Mayor: Date: By: By: _S�� Approved by Mayor for Submission to Council By: Form Approved by City Attorney V�rVO DEPA0.TMENT/OFFICE/COUNCIL DNTEINITIATED GREEN SHEET NO. 106663 Parks and Recreation 1/31/01 COMACT PERSON AND PHONE INITIAUDATE INITIAVDATE Mike Hahm 266-6444 �.►h, l oeeaarn��rowecroR 4 CITYCOUNCIL ASSIGN NUMBER FO Z CIiY ATTORNEY — CIN CLFRK MUST BE ON COUNCIL AGENDA BY (DATE) NOUTING ORDEfl BUDGET DIRECTOR FIN. & MGT. SERVICE$ OIR. 2/7/01 3 MAVOR (OR ASSISTANT) 5 Parks & Recreation - 300 CHA TOTAL t OF SIGNATURE PAGES � (CLIP ALL LOCATIONS FOR SIGNAiVRE� ACTIOPo REQUESTED: Authorizing City Officials and staff to enter into Lease Agreement with the Mildred Pierce Inc. for locating a floating restaurant on the Public Dock in Harriet Island Regional Park. RECOMMENDATIONS: App�ove (A) or Fejett (R� PERSONAL SERVICE CONTRACTS MUST ANSWER THE FOLLOWING QUESTIONS: _PLqNNING COMMISS�ON _CIVIL SERVICE LOMMISSION �, Has thk ye�sonffbm evet woiked unde� a contract to� tfiis depa[tment? CIB COMMITTEE _ YES NO A STAFF 2. Has this persan/firm ever been a ci[y employee? VES NO DISTRICT COUNQL — — 3. Ooes this person/firm possess a skill not normally possessetl by any current ciTy employee? SUPPORTS WHICH COUNdL O&IECTNE? VES NO Ezplain all yes answe�s on separate shee[ antl attach to 9reen sheet. INrtIATiNG PAOBLEM, ISSUE, OPPORiVN1N IWho, WhaA When, Where, Why): The City has undertaken an extensive renovation of Harriet Island Regional Park. With many of these renovations now comp�ete, the City desires to offer amenities for the enjoyment of park goers. Mildred Pierce Inc. has agreed to operate a floating restaurant on the Public Dock. ADVANTAGESIfAPPROVEO' Mildred Pierce will proceed with plans to locate a restaurant at Harriet Island. Related services be available to the public beginning in June 2001. r 8S?� (`,P DISADVANTAGES IF APPROVED: �,Pt�' � �� None DISADVANTAGES IF NOT APPROVED: Mildred Pierce will not proceed with plans to locate a restaurant at Harriet Island. Related services will not be available to the public. TOTAIAMOUNTOFTRANSACTION $%ofi revenues IS5.000 minimum) COST/REVENUEBUDGEfED(CIRCLEONE� YES NO FUNDINGSOURCE Soecial Services Fund - Harriet Island ACTIVITYNUMBER 325-23105 FINqNCIAL INFORMATION: lEXPLAIN) o�_gq � AGREEMENT This AGREEMENT is made and executed on this day of 2001, by and between the City of Saint Paul, a municipal corporation of the State of Minnesota, hereinafter referred to as the °CITY" and Mildred Pierce Inc., a corporation registered in the State of Minnesota, hereinafter refened to as "MILDRED PIERCE". ARTICLE I RECITALS WHEREAS, MILDRED PIERCE desires to operate a FLOATING RESTAURANT on the Vessel commonly known as "shanty boat" (hereina8er referred to as FLOATING RESTAURANT or SHANTY BOAT� at Harriet Island Regional Park owned and operated by the CITY. WHEREAS, the CITY recognizes that this operation would provide a benefit to the public by expanding opportunities 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 MILDRED PIERCE the privilege of operating a floating restaurant adjacent to the CITY's public dock, located in Harriet Island Park at the specific site identified on Exhibit A attached hereto, on the vessel currently known as the SHANTY BOAT. The FLOATING RESTAURANT shall be located within 10 to 15 feet of the location depicted on E�ibit A. II.2. If either of the two vessels currently moored on the Public Dock via individual agreements with the CITY (Covington and Re7oyce as depicted on e�ibit A) is no Ionger occupying its location on the Public Dock and the related agreement with the CITY to operate at that location is voided, it is the intent of the CITY to locate the FLOATING RESTAURANT in the vacated position on the Public Dock. If this circumstance occurs at any time during the term of this AGREEMENT, MILDRED PIERCE agrees to relocate at its cost prior to May 1 of the next operating season. II3. The FLOATING RESTAURANT must be independently anchored in a stationary position adjacent to the Pubiic Dock, and may not use the public dock for any weight bearing attachments or tie-up purpose. Where required, the CITY will assist in obtaining any related permits that are necessary. o�-t1 II.4. FLOATiNG RESTALJRANT customers and personnel shall use the public dock for ingress and egress into the FLOATTNG RESTALJRANT. II.S. In cases of emergency or disaster such as flood or other natural act, MILDRED PIERCE will temporarily vacate its location adjacent to the public dock if d'uected to do so by the CITY's Director of Parks and Recreation, Fire Chief, Police Chief or other CITY o�cial delegated such power due to the emergency. The cost of this relocation shall be borne by MILDRED PIERCE. Further, MILDRED PIERCE will make no ciaim against the CITY for lost business or added expenses due to such temporary relocation unless the CITY was responsible in whole or in part for the need to relocate. II.6. The CITY and MILDRED PIERCE acknowledge that construction projects in the Mississippi River and adjoining pazk areas may be occurring during the term of this AGREEMENT and agree to cooperate with each other if the construction causes the FLOATING RESTAi.3RANT to be relocated temporarily. Such new location shall be as accessible as the original location, as is reasonably possible, and relocation shall be made at the CITY'S expense. In such an event, the CITY's cost shall not exceed $50,000. II.7. Excepting Article II.2, if it is necessary to permanently relocate the FLOATING RESTAURANT from the original location, the CITY shall at all times determine the new site of the FLOATING RESTAURANT at Harriet Island subject to MILDRED PIERCE'S approval. The parties shall negotiate in good faith for an alternate location. If it is the CITY that causes the move, the CITY shall pay for the relocation. In all other cases any relocation costs shall be borne by MILDRED PIERCE. ARTICLE III TERM OF THE AGREEMENT III.1. The term of this AGREEMENT shall be fifteen (15) years, coznmencing upon the execution date of this agreement. IIL2. MILDRED PIERCE may commence operations any time after the renovation is completed as required in Article V.2, but shall commence operation of the restaurant no later than Jtme 15, 2001. III3. Provided there are no uncured defaults of this AGREEMENT, the CITY agrees to enter into good faith negotiations for renewal of the AGREEMENT at the end of the fifteen-year term. o�-t� ARTICLEIV SITE MAINTENANCE N.1. The CITY shall use its best efforts to maiutain and keep the park azea in, about and adjacent to the azea from which the FLOATING RESTAURANT will operate, clear of refuse, rubbish and miscellaneous unsightly storage. IV.2 The CITY is not responsible for snow removal from the Public Dock. MILDRED PIERCE assumes the responsibility to cleaz snow from the dock only as it deems necessary. IV 3 MILDRED PIERCE shall not attach anything to or otherwise alter the Public Dock in any way without the prior authorization of the CITY IV.4 MILDRED PIERCE shall be responsible for any damage that it causes to the Public Dock, excluding normal wear. ARTICLE V RENOVATION-CONSTRUCTION V.l. The parties recognize that renovation and construction is required to make the SHANTY BOAT suitable to operate as a floating restaurant. V.2. MILDRED PIERCE agrees to renovate the SHANTY BOAT at its own expense prior to locaring the vessel at the Public Dock. The renovation shall be complete no later than June15,2001. V 3. The exterior renovation work and major interior renovations identified in part V.2. shali be performed at a location identified by MILDRED PIERCE, which shall not be a park location. V.4. The renovation work identified in part V3 shall be completed prior to the FLOATING RESTAtJ4ZANT being relocated to the Harriet Island site. Interior finishing work, such as painting, carpeting and minor carpenriy as well as the installation of equipment and supplies such as tables and chairs may be completed after the FLOATING RESTAURANT is located on the Public Dock, provided that such work does not in any way encroach upon the public use and enjoyment of the public dock and surrounding park areas. V.S. All costs of renovation, including utilities, shall be the responsibility of MILDRED PIERCE. V.6. MILDRED PIERCE will review its renovation plans with the CITY prior to initiation. CITY maintains the right to approve said plans, said approval not to be unreasonably w�ithheld. MILDRED PIERCE further agrees that any subsequent remodeling or renovation plans will be reviewed with CITY and subject to CITY approval, said approval not to be unreasonably withheld. o�-�q ARTICLE VI PAYMENTS AND REPORTING REQUIREMENTS VI.1. MILDRED PIERCE shall pay the CITY the greater of the following: � $5,000 min;mum flat fee per yeaz; or (1) �2) ��) 1.75% of gross revenues generated by the restaurant over $400,000 for the first three years of operation; 2.0% of the gross revenues generated by the restaurant over $400,000 for years four through eight; and 2.5% of the gross revenues generated by the restaurant over $400,000 for years nine through fifteen. VI.2. The minimum flat fee per year shall be paid by MILDRED PIERCE to the CITY as follows: a. In the first year ofthis AGREEMENT, $2,500 on September 1�` and $2,500 on December 27T'' . � c. AGREEMENT; and $2,500 on July lst of years two (2)- fourteen (14) of this AGREEMENT; $2,500 on October lst of yeazs two (2)- fourteen (14) of this VI3 Any percentage payment due the CITY from the previous year by February 15th of each year. VI.4. MILDRED PIERCE shall keep at the FLOATING RESTAURANT, or at 786 Randolph, or at current principal place of business, a permanent accurate set of books and records which wili accurately reflect and permit the determination 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. VI.S. On or before the fifteenth day of February of each calendaz year under this AGREEMENT, MILDRED PIERCE shali 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 shail be in such form and contain such detait as may be necessary to adequately account to the CITY in accordance with generaliy accepted accounting principles, for the payments due under this AGREEMENT. � o�- � ARTICLE VII OPERATIONS VII.i. The FLOATING RESTAURANT must contain a sit down dining element but may also contain a fast food element. The restaurant will be open to the general public with a family oriented ambience prnnarily offering a casual dining experience that will serve patrons who arrive from land and water. There will be a particular emphasis on serving patrons who are visiting Harriet Island and the waterfront. VII.2. The CITY agrees to afford MILDRED PIERCE the opportunity to provide push cart vending within Harriet Island Regional Park. The exact products to be vended, hours and other operationai considerations being subject to the approval of the CITY, to be structured as a written addendum to this AGREEMENT. MILDRED PIERCE's right to push cart vending is not exclusive. VII.3. MILDRED PIERCE shall operate the FLOATING RESTAURANT in a manner which will be a credit to the City of Saint Paul. a. At a minimum, it is expected that the FLOATING RESTAURANT will operate each year of this AGREEMENT for a minimum of five consecutive months to be between the months of April and October inclusive. During this time, the facility will be open a minimum of six days a week, for a minimum of 6 hours daily, to be between the hours of 12 noon and 8 pm. MILDRED PIERCE may, upon approval of the CITY which shall not be unreasonably withheld, adjust minimum hours and/or seasons of operation in response to changing market conditions. b. The facility housing the FLOATING RESTAURANT shall be keep in good repair both inside and out. Painting, and other minor repairs, wiil be done, as needed, in a timely manner and may be done on site. a The outside of the FLOATING RESTAURANT shall be kept free of trash and debris. d. On-land activities which support the FLOATING RESTAURANT, shall be perforxned in a safe and orderly manner. e. Customers, guests and general public shall be treated in a polite, sensitive and customer friendly manner. VII.4. The FLOATING RESTAURANT located on the public dock is intended to serve the users of Harriet Island Park, therefore off-site catering by the facility shall account for no more than 15% of its annual sales. o �-8� VII.S. The operating hours of the FLOATING RESTAURANT shall be no eazlier than 6:00 am. and no later than the closing hour of Harriet Island Pazk, which is currendy 11:00 p.m. VII.6. MILDRED PIERCE may erect signage to advertise and identify the FLOATING RESTAURANT. Such signage shall be submitted to the CITY for approval for desib , content and location prior to it being erected. The CITY reserves the right to approve of any signage, and may require that it be consistent in appearance with other signage within the pazk and further, may it require that it be incorporated into the CITY's park signage. VII.7. The patrons of the FLOATING RESTAURANT shall park their vehicles at a location determined by the CITY. The patrons of MILDRED PIERCE shall have access to public parking near the public dock. The CITY shall wark with MILDRED PIERCE in identifying alternate pazking locations that are reasonably close to the public dock for use for on occasions when parking lots at Harriet Island are full. ARTICLE IX DEFAULT AND CURE VIII.1. If MILDRED PIERCE fails to comply with any material term of this AGREEMENT, the CITY shall have the option to declare this AGREEMENT in default. If the CITY chooses to declare this AGREEMENT in default for a breach by MILDRED PIERCE, it shall provide written notification of the breach by registered mail. If MILDRED PIERCE 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, MILDRED PIERCE shall have the option to declare this AGREEMENT in default. If MILDRED PIERCE chooses to declare this AGREEMENT in default for a breach by the CITY, it shall 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 MILDRED PIERCE shall 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 IX. L This AGREEMENT shali automatically terminate at the end of the fifteenth year term unless the parties agree in writing to extend it. IX.2. If MILDRED PIERCE fails to commence operation of the restaurant by June 15, 2001, this AGREEMENT shall automatically be terminated unless: 0�-�'9 a. The inability to commence operations by June 25, 2001 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 MILDRED PIERCE such as labor disputes, acts of God or other events listed in Article XVI3. IX3. If this AGREEMENT is terminated by the CITY for failure to open by June 15, 2001, MILDRED PIERCE will make no claim against the CITY due to MILDRED PIERCE'S failure to implement its restaurant operation unless the CITY' S conduct has prevented it from opening. IX.4. Notwithstanding-any other provision herein, this AGREEMENT shall automatically terminate without the right to cure upon the occurrence of any of the events described below; a. A petition by or against MILDRED PIBRCE under the bankruptcy laws of the United States, which petition is not dismissed within ninety (90) days from the date of such filing; and b. The assignment by MILDRED PIERCE of its assets for the benefit of creditors under any state insolvency laws. IX.S. Upon termination of this AGREEMENT, MILDRED PIERCE shall vacate the location used by the FLOATING RESTAURANT 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.l. The FLOATING RESTAURANT may be self-operated by MILDRED PIERCE, or by another entity or person with the express written approval of the CITY. X.2. If MILDRED PIERCE 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 financial terms; and (iv) such financial information as the CITY may reasonably request concerning the proposed third-party. MILDRED PIECE shall pay the CITY a reasonable fee for the CITY' S expenses, inciuding attomeys' fees, in reviewing such proposed subiease or transfer and in reviewing the proposed third-party's financial ability to assume the AGREEMENT, said fee not to exceed $500.00. 7 o �-,� X3. If there is a sub-lease or sale to any other parry(ies), the other party(ies) and MILDRED PIERCE shatl submit to the CITY their plans for the operation of the FLOATING RESTAUR ANT. This plan must include: operating schedule, menu(s) any entertaimnent pians, financial structure and references in the case of a sale or lease, management structure and any plans to remodeUredesign the boat. T'his shall occur before any sale or lease is completed. X.4. In the event of a sub-lease of the FLOATING RESTAURANT operation, MILDRED PIERCE 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. ARTICL� XI COMPLIANCE WITH LAW XI.1. MILDRED PIERCE, 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 grounds 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 shall be excluded from participating in, be denied the benefits of or be otherwise subjected to discrimination in the use of said facilities. b. No discrimination shall 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 facilities and services provided for public accommodations (such as eating, rest and recreation) constructed or operated on the FLOATING RESTAURANT, and; d. MILDRED PIERCE shall use the premises in compliance with all other requirements imposed pursuant to the Saint Paul Legistative Code Chapter 183. XI.2. MILDRED PIERCE shall keep and observe all State, Local and Federal laws, rules and regulations. a. In regards to the above, MILDRED PIERCE shall be responsible to obtain and keep current any licenses and permits needed to operate the facility. This AGREEMENT does not exempt MILDRED PIERCE or FLOATING RESTAURANT customers from park rules and regulations, except as may be provided elsewhere in this AGREEMENT. � �\-� XI3. MILDRED PIERCE shall recognize the authority of the CITY's Licencing Division, and agrees to obtain the appropriate restaurant licences and liquor licences prior to commencing operation. ARTICLE XII UTILITIES AND MAINTENANCE XII.1. Any ongoing operations or maintenance expenses shall be MILDRED PIERCE' S responsibility. XII.2. MILDRED PIERCE shall pay all utility hook-up and usage costs associated with their enterprise. This includes: water, electrical, gas, sewer, telephone, cable television and any other such service. MILDRED PIERCE 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 identified on E�ibit A or at the location currently occupied by either of the two vessels current moored at the public dock. This provision is subject to Article II.S. XII3 MILbRED PIERCE acknowledges that the CITY has represented that at present there are no available utility services to readily access for its use at or near the Public Dock. MILDRED PIERCE has represented that if no services are available at the time when the FLOATING RESTAURANT is located at Harriet Island, that it will acquire utility services via the services currentiy in place serving the MV Covington. The CITY beazs no responsibility related to any such arrangement between MILDRED PIERCE and River Valley Preservation, the agent which operates the MV Covington at this location under agreement with the CITY. XII.4. MILDRED PIERCE shall dispose of all rubbish and refuse generated in connection with its operation at its cost but shall not be responsible far the upkeep, maintenance or repair of park properiy used in connection with the enterprise. The CITY shall provide a location at no cost for MILDRED PIERCE to place a trash dumpster adjacent to the parking area in which to dispose of its rubbish and refuse. The CITY shall have the right to approve of the type and size of dumpster. ARTICLE XIII INDEMNIFICATION XIII.1. That MILDRED PIERCE hereby agrees to hold the CITY and all of its officers, agents and employees hannless and indemnified from and against any penalty, damage or charge imposed for any violation of laws ar ardinances that are occasioned by the actions of MILDRED PIERCE or those hold or operating under MILDRED PIERCE. In addition thereto, MILDRED PIERCE 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 MILDRED PIERCE on or about the premises used by MILDRED PIERCE pursuant to the privileges granted hereunder which may cause injury to any person or property. 0 0\ -� ARTICLE XIV INSURANCE XIV.1. As additional assurance of such indemnification, but not in lieu thereof, MILDRED PIERCE sha12 obtain and pay the premiums upon a general liability insurance policy(ies) which will name the CITY as an additional insured. Such policy(ies) shall cover injury to persons or properry arising out of the operation of MILDRED PIERCE'S business with limits of not less than $40,000 with respect to properry loss, $300,000 with respect to injury or death to any one person and $1,000,000 for any number of clauns arising out of a single occurrence. If the maximum liability is modified by the legislature, MILDRED PIERCE shall be required to provide coverage adequate to cover up to the limits of the CITY' S masimum liabiliry. The policy(ies) of insurance shatl be submitted to the City Attorney for the CITY for approval and shall be filed with the Department 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 perxnit cancellation without 30 days prior written notice to the CITY. XIV.2. That in the event that MILDRED PIERCE determines to sell beer and/or wine or 2iquor, MILDRED PIERCE 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) sha1T be filed with the Department of Finance and Management Services prior to the serving of beer and/or wine or liquor by MILDRED PIERCE. Such insuzance policy(ies) shall be kept in force diuing the entire period that this AGREEMENT or any renewal thereof is in effect and shall contain provision which will not permit cancellation without 30 days przor �vritten notice Yo the CITY. ARTICLE XV EVENTS AND CONSTRUCTION XV.1. Construction: That the CITY will not be responsibie for lack of revenue due to construction work or projects of any kinc3 in proximity to the FLOATING RESTAURANT. XV.2. Events: The CITY shall notify MILDRED PIERCE by March 1�` of each yeaz of any special events planned for Harriet Island that may cause a disruption in the activities planned for the FLOATING RESTAURANT. MILDRED PIERCE recognizes that the CITY maintains the option to schedule special events after the initial March 1 annual notification date. To minimize the potential impacts of the special event as it is relates to the FLOATING RESTAUFtANT, the CITY will provide prompt txorification to and consultation wzth MILDRED PIERCE in the event of any pianned additions to the special event schedule. The CITY retains the right to schedule such special events over the objection of the MILDRED PIERCE if the parties are unable to cooperatively agree on such scheduling. [[1] o�_�q ARTICLE XVI ADDITIONAL PROVISIONS XVI.1. Waiver: MILDRED PIERCE 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. XVT.2. Force Majeure: The failure of performance or delays by either pariy shall be excused if caused by or if arising out of acts of God, sirikes, labor disputes, acts of the public enemy, wazs, riots, floods, storms, material shortages, act of State or Federal government and any other causes whether similar or dissimilar, which are not reasonably within the control of the parry claiming Force Majeure. XVL3. No Exclusivity: No provisions of this AGREEMENT may be construed as giving MILDRED PIERCE exclusive rights to this type of enterprise or any other enterprise in that portion of the river where the enterprise is located. The CITY shall have the right to evaluate and place other business ventures within the proximiry of MILDRED PIERCE. XVI.4. 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: Victor A. Wittgenstein, Jr. Director of Parks and Recreation 25 West 4"' Street, Room 300 Saint Paul, Minnesota 55102 to MILDRED PIERCE: Shelagh Connolly 786 Randolph Saint Paul, Minnesota 55102 The above addresses or persons to whom notice may be delivered or sent may be changed from tiine to time by notice under this AGREEMENT. XVI.S. Independent Contractor: The parties hereto agree that they are acting as independent contractors and that nothing in tlus AGREEMENT is intended to create, nor shali anything herein be construed or interpreted as creating a partnership between the City and MILDRED PIERCE except as expressly agreed to herein. Each party shall be responsible for its own separate debts, obligations and other liabiliYies. i1 �1-� XVI. Amendmenfs: This AGREEMENT may by amended by the mutual consent of the parties heteto. Amendments are made effective upon the written a�eement of the Director of Parks and Recreation and the president of MILDRED PIERCE. XVI.�. Severability: If any provision of this AGREEMENT shall be declazed invalid for any reason and such provision dies not destroy the objects ar�d ptsposes of this AGREEMENT or make unfeasible the performance of the remaining terms and condirions of this AGREEMENT, such provision shatl be deemed severable and the remaining terms and provisions of this AGREEMENT shall be enforced in accordance with their terms. IN WITNESS VJHEREOF, 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: Shelagh Connolly, President Mildred Pierce Inc. 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