04-226Council File # ���
Green Sheet # �55R
CITY
Presented By
Referred to
RESOLUTION
SAINT PAUL, MINNESOTA
Committee: Date
10
1 WHEREAS, the City has undertaken various projects related to the renovation
2 and operation of Harriet Island Regional Park, and
3 WHEREAS, as part of the available services at Harriet Island Regional Park, the
4 City has maintained a floating bed and breakfest via a lease agreement with River
s Valley Preservation Association, and
5 WHEREAS, River Valley Preservation is in the process of selling the bed and
� breakfast to Liz Miller Investments, the principal of which has indicated a desire to
8 maintain dockage at Harriet Island, and
9 WHEREAS, a new lease agreement is required in order allow continued dockage
lo at Harriet Island for the bed and breakfast upon the pending sale to Liz Miller
ii Investments, and
lz WHEREAS, on February 11, 2004, the Saint Paul Parks and Recreation
13 Commission reviewed the proposed lease and recommended that the Division of Parks
i4 and Recreation proceed with the approval process, now, therefore, be it
15 RESOLVED, that proper City officials and staff are hereby directed and
15 authorized to enter into the attached lease agreement with Liz Miller Investments, LLC,
i� for locating a bed and breakfast in Harriet Island Regional Park.
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AGREEMENT
THIS AGREEMENT, made and entered into this day of ,
2004, by and between the City of Saint Paul, a municipal corporation, ("City") and Liz Miller
Investments, LLC ("LMP').
WITNESSETH:
That the City does hereby grant to LMI the privilege of operating a bed and breakfast at a
site on the Saint Paul portion of the right descending bank of the Mississippi River in
proximity to river mile 839.7, as set forth in Exhibit A, attached hereto and incorporated
by reference herein. The privilege granted hereunder is limited to a mooring site on the
Public Dock and does not convey rights to use of the Public Dock for activities other than
ingress and eg�ess.
2. That the period of this Agreement shall be for fifteen years commencing on or about
March 1, 2004 and running through February 28, 2019.
3. That LMI shall pay the City the greater of the following:
A. For the period from March 1, 2004 through August 31, 2011, the greater of:
1) a$4000 minimum flat fee per year or:
2) 2.5% of the revenue generated by the bed and breakfast from room
rental over $100,000.
B. For the period from September 1, 2011 through February 28, 2019, the greater of:
1) a$5,000 minimum flat fee per year or:
2) 5% of the revenue generated by the bed and breakfast from room rental
over $200,000.
The applicable payment owed by LMI to the City shall be hereafter called the "Lease
Payments."
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4. That LMI shail use an accounting method acceptable to the City and shall keep and
maintain in accordance with generally accepted accounting principles, proper and
adequate books, records and accounts which will accurately reflect and pernut 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 am. and 5:00 p.m., Monday through Friday, inclusive by
any duly authorized agent of the City, at times of bed and breakfast business operation.
That on or before the fifteenth day of April of each year, LMI shall submit to the City a
statement, in duplicate, showing the total gross revenue received from the operation of the
bed and breakfast for the preceding year. The statement to be submitted shall be in such
form and contain such detail as may be necessary to adequately account to the City in
accordance with generally accepted accounting principles, for the payments due under
this Agreement.
6. That LMI shall make the Lease Payments in two annual installments on July 1 and
October 15 of each year, determined pursuant to Section 3 above, durin�the life of this
Agreement.
7. That LMI hereby agrees to hold the City and all of its officers, agents and employees
haxmless and indemnified from and against any penalty, damage or charge imposed for
any violation of laws or ordinances that are occasioned by the negligence of LMI, its
officers, employees ar agents. In addition thereto, LMI hereby agrees to hold harmless
and indemnify the City, its officers, agents and employees from and against all loss, cost,
damage or expense arising ar growing out of any accident or other occurrence in
connection with the operation by River Valley on or about the premises used by LMI
pursuant to the privileges granted hereunder which may cause injury to any person or
property. As additional assurance of such indemnification but not in lieu thereof, LMI
shall 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 ar property arising out of the operation of LMI's business with limits of not less
that $50,000 with respect to property loss, $750,000 with respect to injury ar death to any
one person and $1,000,000 for any number of claims arising out of a single occurrence.
The policy (ies) of insurance shall be submitted to the Office of Risk Management of the
City for approval and shall be filed with that department prior to the execution of this
Agreement. Such insurance policy (ies) shall be kept in force during the entire period that
this Agreement or any renewal thereof is in effect and shall contain a provision which
will not permit cancellation without 30 days' prior written notice to the City.
The City shall indemnify and hold harmless LMI, its officers, agents and employees from
and against all loss, cost, damage ar expense arising or growing out of any accident or
other occurrence or by any other act of negligence of the City in connection with the
premises maintained and controlled by the City to the extent such loss, cost, damage or
expense is not due to an act or omission of LMI.
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That LMI 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. The rent specified in
paragraph #3 shall be abated in any period during which River Valley's business
operations aze halted on account of fire, windstorm, floods, other acts of God, except to
the extent that any such losses are compensated for by insurance.
9. That LMI shall comply with alllocal, state and federal laws pertauung to discrimination
in employment, housing, education and public accommodations in its operation of the bed
and breakfast.
10. That LMI shall operate the enterprise in a manner which will be a credit to the City of
Saint Paul.
A. The facility housing the enterprise shali be kept in good repair both inside and out.
Painting will be done, as needed, in a timely manner.
B. The outside of the enterprise shall be kept free of trash and debris.
C. On land facilities and azeas, which support the enterprise shall be kept in a clean
condition.
D. Customers, guests and the general public shall be treated in a polite, sensitive and
customer friendly manner.
E. The premises shall be used for the purpose of a bed and breakfast and for no other
purpose.
11. That the City shall notify LMI by registered mail of any failure to comply with the
obligations outlined above and LMI shall have ten days after receipt of such letter within
which to make necessary corrections and to notify the City that such corrections have
been made. Failure of LMI to make such corrections shall be considered a breach of
contract and shall give the City the right to terminate its agreement with LML The City
shall notify LMI of its intentions to terminate the agreement by registered mail. LMI
shall have thirty days to vacate the premises upon receipt of such termination notice.
12. That LMI shall keep and observe all the laws and ordinances relating to said premises and
the care and use thereof.
13. That LMI may erect signage to advertise and identify its enterprise. Such signage shall be
submitted to the City of approval prior to it being erected.
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14. That LMI shail pay all utility hook-up and usage costs associated with its entexprise. This
includes, water, electrical, gas, sewer, telephone, cable television and any other such
service, except charges occasioned by a move compelled by the City's construction
projects.
In the event of a move, required by the City, rent will abate to the extent necessary to
cover the above referenced utility costs.
15. That the City will use its best efforts to maintain and keep the park area in, about and
adjacent to the azea from which the enterprise will operate cleaz of refuse, rubbish and
miscellaneous unsightly storages. LMI shall dispose of all rubbish and refuse generated
in connection with its operation but shall not be responsible for the upkeep, maintenance
or repair of park property used in connection with the enterprise. However, LMI shall be
responsible for all trash removal costs associated with its enterprise.
16. That the City shall have the right to terminate this Agreement at any time upon sixty (60)
days' notice for any uncured default by LMI hereunder.
17. That LMI shall have the right to terminate this Agreement at any time upon sixty (60)
days' notice far any uncured default by City hereunder.
18. That upon termination of this Agreement LMI will vacate the area used by the enterprise
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. In the event a Court of competent
jurisdiction shall determine that the City is unable to perform its obligations under this
Agreement, then all rights granted hereunder shall automaricaliy terminate and neither
party shall be liable to the other for damage.
19. That as used herein, an uncured default is such default as shall not have been remedied
within thirty (30) days from the date of written notification thereof given by one party to
the other.
20. That notwithstanding any other provision herein, this Agreement shall automatically
terminate upon the occurrence of any of the events described below:
A. A petition by or against LMI under the baukrnptcy laws of the United States, which
petition is not dismissed within 90 days from the date of such filing;
B. The assignment by LMI of its assets far the benefit of creditors under under any
state insolvency laws;
C. The assets of LMI or of the business conducted by LMI on the site be assumed by
any trustee or other person pursuant to any judicial proceedings.
21. That it is understood that the facility to be used by LMI far the enterprise upon
termination of this Agreement be removed ar disposed of as LMI sees fit.
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22. That the City and LMI acknowledge that construction projects in the Mississippi River
area will be ongoing during portions of the life of this Agreement. Parties agree to
cooperate with each other if the conshuction causes the enterprise to be moved to a
different location during the life of this Agreement. Such new location shall be as
accessible as the original location, as is reasonably possible.
23. To maintain parking within Harriet Island Regional Park that serves the LMI as well as
other areas and attractions within the park. Nothing herein is intended to convey
exclusive use by LMI of any pazking facilities. The City will maintain access thereto for
LMI at all times, including during special events, and properly inform the LMI of any
event that could hamper in any way access to the leased premises. The City will
accommodate the need for LMI staff and authorized guests, as recognized by the City, to
park vehicles ovemight in the Park, providing as well for the necessary related ingress to
and egress from the Marina Premises. LMI understands that during special events, the
City may restrict vehicular access within the Park and relocate parking for use by LMI as
needed.
24. The City has an exclusive vendor relationship with Midwest Coca-Cola for the sale and
distribution of soft drinks, bottled water, juice drinks and sports drinks within park
property. LMI will honor and cooperate with the provisions far product exclusivity
granted to this vendor and/or and any similar subsequent beverage exclusivity agreements
entered into by the City during the term of this agreement. This provision applies only to
product sales to the general public aboard the vessel and any distribution of product on
park property.
25. That in the event that the parties cannot agree on a new site, if a move as ouflined above
becomes necessary either party may cancel this agreement by giving the other party sixty
days notice of their intenYion to do so.
26. That failure of performance or delays by either party shall be excused if caused by or if
arising out of acts of God, strikes, labor disputes, acts of the public enemy, wars, riots,
floods, storxns, 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
party claiming Force Majeure.
27. That no provisions of this agreement may be construed as giving LMI exclusive rights to
this type of enterprise or any other enterprise in that portions of the river where the
enterprise is located. The City shall have the right to evaluate and place other business
ventures within the proximity of LMI.
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28. That all notices pertaining to this agreement shall be in writing and shall be sufficiently
give if personally delivered or sent by registered mail (date of receipt to control) to City:
Robert Bierscheid
Director of Pazks and Recreation
25 W. 4th Street, Room 300
Saint Paul, Minnesota 55102
to LMI:
Elizabeth Miller
Pier #1, Harriet Island
SaintPaul, MN 55107 (612) 292-14ll
The above addresses or persons to whom notice may be delivered or sent may be changed
from time to time by notice under this Agreement.
29. That the parties hereto agree that they are acting as independent contractars and that
nothing in this Agreement is intended to create, nor shall anything herein be conshued or
interpreted as creating a partnership, joint venture, or any other such mutual relationship
between the City and LMI except as expressly agreed to herein. Each party shall be
responsible for its own separate debts, obligations and other liabilities.
30. The laws of the State of Minnesota shall apply and bind the parties in any and all
questions arising hereunder, regardless of the jurisdiction in which any action or
proceeding may be initiated or maintained. If any provision of this Agreement in any way
violates or contravenes the laws of any applicable country, state or municipality, such
provision shall be deemed not to be a part of this Agreement and the remainder of this
Agreement shall remain in full force and effect. The invalidity or unenforceability of any
provision of this Agreement shall in no way affect the validity and enforceability of any
other provision hereof.
31. That if any provision of this Agreement shall be declared invalid for any reason and such
provision does not destroy the obj ects and purposes or this Agreement or make unfeasible
the performance of the remaining terms and conditions of this Agreement, such provision
shall be deemed severable and the remaining terms and provisions of this Agreement
shall be enforced in accordance with their terms.
32. That this Agreement shall not be assigned or sublet by LMI without the prior written
consent of the City, which consent must be obtained prior to the execution of any
agreement with a third party.
33. This Agreement shall cancel and terminate any prior leases or agreements as of the
effective date of this lease, whether with LMI ar its predecessor in interest.
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34. Anything herein contained to the contrary not withstanding, this Agreement may be
terminated, and the provisions may be, in writing, amended by mutual consent of the
parties hereto.
35. This Agreement may be extended by mutual consent of the parties for an additional five
year period. Parties shall notify each other in writing not less than sixty days prior to the
expiration of the Agreement of an intent to renew, and shall have sixty days beyond the
expiration of the original contract term to reach agreement on the terms for any renewal
period. If parties have been unable to reach agreement by the end of the sixty days, the
Agreement shall be terminated without further action by either party.
36. This Agreement shall be interpreted and construed according to the laws of the State of
Minnesota. All litigation related to this Ageement shall be vended in the District Court
of the County of Ramsey, Second Judicial District, State of Minnesota.
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands to
this Agreement as of the day and year first above written.
CITY OF SAINT PAUL: LIZ MILLER INVESTMENTS, LLC:
Mayor
Director of Parks and Recreation � �
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Director of Finance and Management �� �
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I\• • • �l��ZI.`ll�j,'��7s7�1
Assistant City Attorney
G:\SP\WP\Agreements\River Valley Preservation Soc2004wpd.wpd
� Green Sheet Green Sheet Green Sheet Green Sheet Green Sheet Green Sh�'€t'
DepartmenUoffice/council:
PR — rarks ana xecreation
Contact Person & Phone:
Mike Hahm
266-6444
Must Be on Council Agenda by (Date):
Date Initiated:
13-FEB-04
y
Assign
Number
Por
Routing
Order
Green Sheet _NO: 205596
Deoartment SeMTOPerson InitiaUDale
0 and tion
1 ksand eation tDlrector ��
2 ' cial 'ces ' �� 2
3 ' Atto —SS! <<7
4 or's M or/ t
5 ouncil ' C uncil
6 i lerk i ler
Total # of Signature Pages 1(Clip AII Locations for Signature)
Action Requested:
Adopt Council Resolution authorizing Ciry officials and staff to enter into a lease agreement with Liz Miller Investments, LLC to locate
and operate a bed and breakfast at Harriet Island Regional Pazk.
Recommendations: Approve (A) or Reject (R):
Planning Commission
CIB Committee
Civil Service Commission
A Paxk Commission
Personal Service
the Followina Questions:
7. Has this person/firm ever worked under a contract for this department?
Yes No
2. Has this persoNfirm ever been a city employee?
Yes No
3. Does this person/firm possess a skill not normally possessed by any
current city employee?
Yes No
Ezplain all yes answers on separate sheet and attach to green sheet
Initiatiag Problem, Issues, Opportunity(Who, What, When, Where, Why): �
The owner of The Covington Inn (River Valley Preservation) is selling the boaWed and breakfast. The new owner (Liz Miller
Investrnents) requires a lease ageement with the City to pwchase the boat and locate it in St. Paul.
i Ativantageslf Approved:
The Covington Inn will have a lease to remain in St. Paul at Harriet Island for 15 years. Revenues an6cipated in the Pazks and
� Recreation budget will remain.
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DisativanWges It Approved:
None
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Disadvantages If Not Approved:
The opportunity tp enter a lease will be lost. The boat may be sold to an oar of market buyer and relocated from St. Paul.
'otal Amount of � 4000. 00 min.
Transaction:
Fundin9 source: Liz Miller Investments
Cost/Revenue Budgeted: y
ActiviriNumber. 001-03105 FEQ i � ���4
Financiallnformation: ��`�� a �-�� a,�
(Explain) � a'°�a � ��n�