Loading...
02-537CouncilFile# O� � 5.�� oR���N�� Presented By Referred To Green Sheet # _.��_ i'. �i � . � Committee: Date WHEREAS the City of St. Paul entered into an agreement dated September 15, 1998 with River Boats, Inc., granting River Boats, Inc. the privilege of operating a floating restaurant adjacent to the public dock located on Harriet Island. WHEREAS the floating restaurant was to open in July, 1999 but River Boats, Inc. did not open the restaurant, and litigation regarding this matter was commenced. WHEREAS River Boats, Inc. also commenced suit against the City of St. Paul and its employees alleging that improper conduct on the part of the City caused the floating restaurant to fail and sought damages for the alleged wrongful conduct. WHEREAS the parties now desire to settle these lawsuits by entering into an Amendment to Agreement which is attached hereto. NOW THEREFORE, BE IT RESOLVED, that the proper City officials are hereby directed and authorized to enter into the attached Amendment to Agreement with River Boats, Inc. ate I Counci Secretarv � Re ested by Department of: � a++a ( c2et�rca� BY�� lA ��' �/l�i/ a�.-S3'1 AMENDMENT TO AGREEMENT This Amendment is made and executed on this day of , 2002, by and between the City of Saint Paul, hereinafter referred to as the "City" and River Boats, Inc., hereinafter referred to as "River Boats." RECITALS WHEREAS, River Boats and the City entered into that certain Agreement dated September 15,1998 in which the City permitted River Boats to operate a floating restaurant on the vessel known as the ReJoyce at Harriet Island Park ("Original AgreemenY'); WI-�REAS, the parties now desire to amend the Original Agreement; WHEREAS, this Amendment shall be referred to as "Amendment to the AgreemenY' herein; NOW, THEREFORE, it is agreed: 1. Article III. i and III.2 of the Original Agreement shall be deleted in their entirety and xeplaced with the following: III1. The term of this Amendment to the Agreement shall be fifteen (15) yeazs, commencing upon the execution date of this Amendment to the Agreement and temunating December 31, 2017. III.2. River Boats may commence operations any time after the requirements of Article V have been satisfied, but shall commence operation of the restaurant no later than 52 days after this Amendment to the Agreement is fully executed. River Boats wili obtain all necessary licenses and pernuts in a timely fashion so as not to delay the commencement of operations. Should River Boats dispute any requirements imposed by the City to obtain licenses or permits, River Boats shail notify the City within five (5) business days of its objections in writing. 3hould River Boats fail to notify the City of its objections, those objections shall be deemed waived, and River Boats shall comply with the City's requirements in a timely fashion. Should a dispute arise as to any requirements imposed by the City to obtain licenses or pernuts, either party shall have the right to submit the dispute to arbitration in accordance with Article XVI of this Amendment to the Agreement. 2. Article V.1-V.5 of the Original Agreement shall be deleted in its entirety and replaced with the following: V 1 The parties acknowledge that the renovation and construction required to be done at a site other than Harriet Island to the ReJoyce has already been completed and that the ReJoyce is currently located at the site from which it oz• 5��1 will operate. V.2 Should any further renovation work be necessary, it may be done where the ReJoyce is currentiy located. River Boats agrees, in order to minimize interruptions and so as not to disturb the enjoyment of others, it will perform renovations between the hours of 8:00 a.m. and 8:00 p.m. River Boats agrees it wIll perform renovations in a manner so as not to block access to the Harriet Island Public Dock. V3. All work lawfully required by the United States Food and Drug Administration, the United States Coast Guard and the City of St. Paul Office of License Inspection and Environmental Protection (LIEP), shall be completed prior to the commencement of operalions as defined in paragraph III.2 of this Amendment to the Agreement. Should a dispute arise as to the appropriateness of any requirements or the timing of the completion of the work imposed by the City, River Boats shall notify the City within five (5) business days of its objections in writing. Should River Boats fail to notify the City of its objections, those objections shall be deemed waived, and River Boats shall comply with the City's requirements in a timely fashion. Either party shall have the right to submit the dispute as to the appropriateness of any requirements or the timing of the completion of the work imposed by the City to azbitration in accordance with Article XVI of this Amendment to the Agreement. V.4. All costs of this renovation, including utilities, shall be the responsibility of River Boats. 3. Articie VI of the Original Agreement shall be amended by aznending Article VL4 as follows and adding Article VI.S: VI.4 On or before the fifteenth of April of each calendar yeaz, River Boats shall submit to the City a statement showing the total gross revenue received from the operation of the restaurant for the preceding year. The statement shall be derived from River Boats' financial statements kept in accordance with generally accepted accounting principles. If the City wishes to review any underlying records, it may do so upon a showing to the arbitrator under Article XVI that a request for further information is justified for a legitimate purpose. VI.S. In consideration for settlement of the lawsuits as described in Article XVI.1, below, and in consideration for this Amendment to the Agreement, River Boats shall not be required to make any payments to the City that were required under Articles VI.1 and VI.2 of the Original Agreement to the City and shall be entitled to operate without making any payments to the City for the entire term of this Amendment to the Agreement. River Boats shall not Page 2 oZ. s3� be required to comply with the record keeping and inspection requirements required under Articles V.3 of the Original Agreement except as provided in Article VI.4 as amended herein. This provision does not affect in any way payments to be made to LIEP as applicable license fees or applicable building pernut fees. 4. Articles VII.l and VII.4 of the Original Agreement shall be deleted in their entirety and replaced with the following. VII1 The restaurant must contain a sit down dinner element but may also contain a fast food element. All food will be prepared on site and River Boats will obtain ali necessary licenses to enable the restaurant to offer a full menu, from a full service kitchen. The menu may be comprised of soups, salads, sandwiches, but must inciude entrees. Hamburgers, hot dogs and pizza are not considered entrees. It is anticipated that the restaurant will be open to the general public with a family oriented ambience primarily offering a casual dining experaence that will serve patrons who arrive from land and water. While liquor, beer, and wine service may be offered, it is agreed that liquor, beer and wine will be provided only from a service bar directly to patrons or via servers for consumption by patrons. River Boats agrees to obtain all necessary licensing from LIEF to offer liquor, beer andlor wine and LIEP and the City shall retain its jurisdiction over the licenses. The City shall not unreasonably deny the license if River Boats meets the requirements set out by its ordinances and state law. The City represents that there are currently no moratoriums restricting River Boat's ability to obtain a liquor license for the location currently occupied by the ReJoyce. While the restaurant will attempt to attract families, service is available to all people who wish to frequent the facility. There will be a particulaz focus on serving patrons who are visiting Harriet Island and the waterfront. Should a dispute azise regarding this Article, either party shall have the right to submit the dispute to arbitration in accordance with Article XVI of this Amendment to the Agreement. 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 Island Park, which is cunently 11:OOp.m. 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 faciliry will be open a minimum of six days a week, for a minimum of 6 hours daily. River Boats will offer a full menu appropriate for the time of day and may offer a limited menu in the evenings after the dinner rush is over, but shall be required to offer food service until closing time. River BoaYs may also adjust its menu in response to customer demand in the off season (November to March inclusive), but shall be required to offer food service at a11 times the business is open. River Boats may, upon the approval of the City which shall not be unreasonably Page 3 OZ.. S 3 � withheld, adjust its minunum hours, minimum days or the minimum number of consecutive months it operates in response to changing mazket conditions. The restaurant may or may not be open during the winter season. If there is a dispute as to whether the limited menu offerings after dinner rush or in the off season comports with the family oriented ambiance, either pariy shall have the right to submit the dispute to azbitration in accordance with Article XVI of this Amendment to the Agreement. 5. Articles IX.2, IX.2(a) and IX.3 of the Original Agreement shall be amended by changing the commencement of operations date from July 1, 1999 to no later than 52 days after this Amendment to the Agreement is fully executed. 6. Article X.5 of the Original Agreement shall be deleted in its entirety and replaced with the following: X.5 In the event of a sub-lease, assignment or transfer of the floating restaurant operation, the sub-lessee, assignee or uansferee sha11 be responsible to comply with all the terms the Original Agreement as amended by this Amendment to the Agreement and shall also enjoy all benefits provided to River Boats hereunder, including, but not limited to the benefits of Article VI.S. 7. Article XI.2 of the Original Agreement shail be amended as follows: �L2 River Boats shall keep and observe all the laws and ordinances relating to said premises and the caze and use thereof. In regazds to the above, River Boats shali be responsible to obtain and keep current any licenses and permits needed to operate the facility. River Boats shall comply with all applicable local safety codes and obtain applicable pernuts from LIEP for all electrical, mechanical, structural and plumbing work performed while renovating the ReJoyce. Should a dispute arise as to the appropriateness of any requirements or the timing of the completion of the work imposed by the City, River Boats sha11 notify the City within five (5) business days of its objections in writing. Should River Boats fail to notify the City of its objections, those objections shall be deemed waived, and River Boats shall comply with the City's requirements in a timely fashion. Either party shall have the right to submit the dispute as to the appropriateness of any requirements or the timing of the compietion of the work imposed by the City to arbitration in accordance with Article XVI of this Amendment to the Agreement. Page 4 b�.S3� 8. provisions: � Article XII of the Original Agreement shall be amended by adding the following XII.4. River Boats shall be responsible for the cost of re-connecting previously instalied utilities that were removed in 2001. River Boats acknowledges that connections previously available will have to be modified due to the presence of the Mildred Pierce Cafe that was not present when the utilities had been previously connected. All modificauons to utilities will be performed by licensed contractors and comply with current codes. River Boats shall noufy the Parks and Recreation Division staff prior to the removal of panels from the dock. River Boats shail coordinate a schedule for the adaptation of the utilities with the Patks and Recreation Division. Tnterruption of utility service to other vendors on the dock shall be coordinated with vendors and the City so as to minimize inconvenience to those businesses. XII.S. The City shall be responsible for snow removal on the sidewalks leading to the public dock. Article XVI.1 of the Original Agreement shall be deleted in its entirety and replaced with the following: 10. P. Piram. 11. provisions: XVI.i. Settlement: With the exception of any disputes that have arisen between River Boats regarding any of its vessels or its business activities at Watergate Marina subsequent to the settlement in River Boats, Inc. v. The City of Saint Paul and Robert P. Piram, File No. 3-95-517, this Agreement, the River Boats Agreement at Watergate Mazina, the Settlement Agreement in River Boats, Inc. v. The Cit�of Saint Paul and Robert P. Piram, File No. 3-95-517 and the Settlement Agreement in City of St. Paul v. River Boats. Inc. and H. Eueene Cassidy, and River Boats Inc. v. Victor A. Wittgenstein. Jr.. Michael Hahm and Steven J. Olson. Ramsey County District Court Case No. CX-01-5152, satisfies all claims, causes of action and controversies brought by those parties. This provision shall survive any ternunation of this Agreement. Article XVI.S of the Original Agreement shall be amended to delete the name Robert Article XVI of the Original Agreement shali be amended by adding the following Article XVI.8. Binding Arbitration. Any and all disputes arising under the Original Agreement as Amended by this Amendment to the Agreement between the parties shall be submitted to Judge Gary Larson who shall retain jurisdiction over this matter by virtue of the Court's power to enforce settlement agreements and who shall azbitrate other matters brought before Judge Larson or his successor pursuant to this Article that aze not within the court's jurisdiction to enforce settlement agreements. The parties agree that the submission of a letter by either party to Judge Larson Page 5 fla.s�� requesting his intervention shall be sufficient to initiate the azbitration contemplated under this Amendment to the Agreement. Judge Larson' s decision will be final as to law and fact. This Article does not require the parties to azbitrate disputes arising under City ordinances or state law with regard to liquor licensing matters. Article XVI.9. Successor Arbitrator. In the event Judge Lazson is no longer capable of azbitrating disputes hereunder, the parties agree to select another person to act as an azbitrator. If the parties aze unable to agree on a new arbitrator, they shali each select their own arbitrator and those two arbitrators shall chose a neutral azbitrator to replace Judge Lazson. Once the neutral azbitrator is selected, the other two arbitrators shall be dischazged. Article XVI.10. Compliance with Orders of the Arbitrator. If the azbitrator requires either party to comply with a requirement it originally objects to, that parry will comply within a time period as required by the azbitrator. Should either party fail to comply with an order of the arbitrator, the other party may seek additional orders from the arbitrator. The arbitrator, in his or her discretion, after considering all factors, including, but not limited to the nature and severity of the situation, the existence of prior disputes, may, but is not required to order River BoaYs privilege to operate the floating restaurant revoked and order such further relief as the azbitrator deems just and proper. If the arbitrator revokes River Boats' privilege to operate the floating restaurant, the arbitrator sha11 have the discretion to determine the time in which River Boats shall vacate the premises and the enforcement mechanisms and penalties, if any, in connection therewith. If ordered to vacate the premises, River Boats sha111eave the premises in the time required by the azbltrator and 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. Shouid River Boats fail to vacate within the prescribed time, the City, at its option, may seek further relief from the arbitrator who shall have the power to order any and all legal and/or equitable relief that would be available to a court of competent jurisdiction over the matter, including those remedies available to a landlord dealing with abandoned property of a tenant. If either party engages in conduct that is alleged to be wrongful, either party shall be entitled to an evidentiary hearing before the azbitrator to deternune whether the aggrieved party is entitled to an awazd of damages and the ubitrator shall have the power to award damages andlor injunctive relief together with their costs and disbursements, including reasonable attorneys' fees if provided by law to the aggrieved party. 12. Except as otherwise amended by this Amendment to the Agreement, all other provisions of the Original Agreement shall remain in full force and e€fect. Page 6 O�=S'3� IN WITNESS WI �REOF, the parties hereto have hereunto set theirhands to this Agreement as of the day and year first above written. APPROVED AS TO FORM: Assistant City Attorney FOR RIVER BOATS,INC.: , � H. Eugene sidy Gc �� Its Chief Executive Officer CITY OF SAINT PAUL: The Honorable Randy Kelly, Mayor Darector of Parks and Recreation Director, Department of Finance and Management Services City C er:c Page -7- i.3 �U 90 DEPARTMEN7KJFFlCElCpUNCIL WTE7NIM� " _ c�r Attorne �S Office 6- GREEN SHEET No �''� COMAC7 PERSON & PHONE / � }.� Initlaww InmWDxe O ► 3� Gail Langfield u��!/�� /d ]. �,�,�,��„ 4 d ,,,� MUST BE ON COUNCILAGB�OA BY @4Tq AlSIf.N 2 IFlNB6t WR ❑ �AiiOUEY ❑ fJIYCIfiRlc Rd1TIIi�. �� n1�OC1�ttFAYICFSOn. n1�Ht111laFRVGCCi6 � r�vo¢IORUaruwrl � ❑ TOTAL # OF SIGNATURE PAGES (CLIP ALL LOCATIONS FOR SIGNATURE� CTION RE�UESTm Authorization to enter into the attached Amendment to Agreement. ' f�253a!CSt �c^'•:=� ���� �. a� L��� RECOMMENDATION Approve A) a Reject R 7ERSONALSERVICE fANiRACfS MUSTANSWERTNE FOILOWIN6 QUES7IONSs 1. 4lasthis Pe+suwm� emwakeE under a coM�ac[fafhis depMmeM't PL4NNING COMMISSION YES NO . CIBCAMMITTEE 2. HesMieperaa�mie�abeenadlyemplo'yee? � � : CNIL SERVICE CAMMISSION YES NO ` 3. Dcee this P�rm D�awa a sldll rwt namallYP�sed M' �Y curtent dty empbyee7 YE3 NO 4. Is thie peisoruTirtn a tarpeted �endoYt YES !!O E�llain nll yes answeB an separete sheet and atta� to prem aheet INITIATMG PROBLEM ISSUE, OPPORTUNITY (WM, YVhat, When, Where, Why) River boats and the City have initiated lawsuits regarding the floating restaurant on Harriet island. The-attached agreement has been negotiated to settle the suit. ADVANTAGESIFAPPROVED The lawsuits are settled. The public will have an opportunity to enjoy food and beverages on a boat which will be located adjacent to the City's public dock on HarrieC Island. DISADVANTAGES IF APPROVED None. DISA�1/ANTAGES IF NOTAPPROVED The lawsuit againsC the City wi11 go forward. TOTAL AMOUNT OF TRANSACTION S COST/REVENUE BUDfiEIm (qRCLE ON� VES NO FUNDING SOURCE ACTIVT' NUMBER FlNANCW.INFORMATION (IXPWN)