CITY OF PROVIDENCE, by and through its Treasurer, JAMES J. LOMBARDI; ROBERT F. MCMAHON, in his capacity as Superintendent, City of Providence Department of Parks & Recreation; WENDY NILSSON, in her capacity as Superintendent, City of Providence Department of Parks & Recreation; MAYOR JORGE O. ELORZA, in his capacity as Chairman, City of Providence Board of Contract and Supply; RHODE ISLAND ZOOLOGICAL SOCIETY and P.G.S., INC.
County Superior Court
Plaintiff: Carl S. Levin, Esq.; Gabriella G. Gaal, Esq.
Defendant: Harris K. Weiner, Esq.; Jillian H. Barker, Esq.
a bench trial, this matter is before the Court for decision.
The parties herein are Plaintiff, Lagondola, Inc., referred
to as "Lagondola" or "Plaintiff, " which
has been the concessionaire (operator) of the Boathouse
boating concession at Roger Williams Park since 2008. The
concession contract term was subject to two possible
five-year extensions. The contract presently runs through May
16, 2021. The concession contract inter alia
provides that Lagondola is ". . . the exclusive provider
of all boating including amphibious, gondola, paddle boat,
canoe, kayak and bumper boat concessions in Roger Williams
Park and Zoo." Lagondola, prior to its acquisition of
the Boathouse concession, had established a relationship with
the City of Providence (Defendant herein) through its
Department of Parks & Recreation when Lagondola began
operating a gondola concession at Waterplace Park in Downtown
Providence, also within the purview of the City Department of
Parks & Recreation.
City owns Roger Williams Park and the individual Defendants
sued in their capacities set forth in the caption of this
case are various officials of the City involved in the
management, operation, direction and contracting with respect
to operations of and at the park as well as at its various
amenities such as the boating concession, Carousel Village
and the Roger Williams Zoo. Collectively, City and individual
Defendants are referred to as "City."
2005, Rhode Island Zoological Society (referred to as
"RIZS" or "Zoo") (also a Defendant
herein) entered into a zoo lease and operating agreement with
the City which by its terms inter alia provided for
payments by the City to RIZS of substantial sums for
salaries, benefits, utility costs, etc. The zoo lease and
operating agreement also provided that its term would expire
on the last day of June 2015. Further, it contained a
provision for automatic five-year extensions unless either
party gave the other written notice as to non-renewal not
less than six months before the expiry of the initial or any
2012, Lagondola began operating the so-called Carousel
Village concession which had been theretofore operated by
Lagondola's predecessor, CLM Parks, Inc. The concession
contract by its terms terminated on April 30, 2015; however,
the term was subject to extension for an additional five-year
term upon mutual agreement between the City and Lagondola
including mutual agreement as to the payments to be made by
Lagondola to the City during such extended period. The
Carousel Village concession primarily contains or consists of
a carousel, assorted vending and gaming machines, and space
where parties or groups can be accommodated for birthday
parties and like occasions. The Carousel Village also
includes a food concession called the Depot.
instant litigation stems from alleged bad faith solicitation
by the City of new bids for the operation of Carousel Village
and the award of the concession by the City to the RIZS; the
circumstances underlying the solicitation of bids and the
propriety of the City's seeking such bids; the actions of
RIZS in allegedly interfering with Plaintiff's economic
opportunities and the propriety and meaning of a certain
amendment purportedly granting Lagondola an exclusive right
to operate a train ride and amusement rides in the park and
the zoo so long as the Carousel concession contract and/or
any other contract Lagondola then had with the City continued
seeks relief under six separate counts as set forth in its
Third Amended Complaint as follows: Count I - Declaratory
Judgment as to Selection of the Zoological Society as the
Successful Bidder; Count II - A Writ of Mandamus; Count III -
Declaratory Judgment With Respect to Train Rides in Roger
Williams Park; Count IV - Declaratory Judgment With Respect
to Lagondola's Boathouse Concession; Count V - Breach of
Contract/Breach of the Duty of Good Faith and Fair Dealing;
and Count VI - Intentional Interference with Prospective
to the provisions of Rule 52 of the Rules of Civil Procedure,
the Court hereinafter will set forth a) findings of fact with
respect to the matters tried to it; b) findings with respect
to the law applicable to the facts; and, c) its conclusions
in connection therewith. The Court only will articulate those
facts which are necessary to its final conclusion
purposes of this Decision, the Court finds by a preponderance
of the evidence the following facts:
Roger Williams Park is located in the City of Providence.
Roger Williams Park and Zoo includes several lakes, walkways,
roadways, historic buildings, ball fields, a boathouse, and a
road separates the Carousel Village from the Boathouse
grounds and the two facilities are visible to each other.
Boathouse consists of two stories of offices and rooms, the
" Warming Room, " an open space on the first floor
historically used for public gatherings, back patio, east and
west wings where boats are stored and rented, a dock, and
ramps all located along Pleasure Lake. The Providence Parks
Department's offices are in the Boathouse.
Trial witnesses included:
a. For the Plaintiff: Robert McMahon, a 29-year City employee
scheduled for retirement, who was the Superintendent of
Parks; Alan Sepe, another long-term employee who was Mr.
McMahon's supervisor as Director of Operations, La
Gondola President and owner Cynthia Days, her husband and
employee Allen Days, and Executive Director of the Zoo, Dr.
b. For the Municipal Defendants: Current Superintendent of
Parks Wendy Nilsson.
c. For RIZS: Wendy Nilsson and Dr. Goodman.
McMahon urged La Gondola to assume the Boating Concession in
2008 and recommended it to the Board of Park Commissioners.
Because La Gondola purchased an amphibious boat, per the
Boating Concession contract, the term is for ten years, with
two five-year options having been extended through action of
the Board of Contract and Review through at least 2021.
Pursuant to the Boating Concession contract, La Gondola is
leased "the concession facility" which is described
in the RFP as follows:
"Behind the Dalrymple Boathouse has an existing concrete
dock area with approx. 1, 370 sq. ft. of dock space located
on Pleasure lake. The west wing is used for storage of the
existing paddleboats, canoes, life vests, and paddles during
the winter months. The east wing of the Dalrymple Boathouse
is used as the ticket purchasing area, office space and
additional paddleboat slip storage. There is also a small
concession stand area and access to public restrooms."
See Ex. 15 at 584.
Gondola rents paddleboats, swan boats, canoes and kayaks from
the boathouse and from another dock on Willow Lake located at
the opposite side of its premises across from the Carousel
Gondola also sells snacks and drinks from the Boathouse and
from a mobile cart.
McMahon recommended La Gondola to the Board of Park
Commissioners to assume the Carousel Village concession upon
the retirement of the previous concessionaire.
that time, the Board of Park Commissioners also approved La
Gondola's use of a trackless train along with the
Carousel Village concession.
McMahon, who had some discretion over such routes in the Park
and Zoo, approved the train route that operates outside of
the Carousel Village.
Gondola began operations at Carousel Village on November 5,
Paragraph 15 of La Gondola's Carousel Village Agreement
states "La Gondola, Inc. and the City may amend, modify,
and supplement or waive any provisions of the Agreement in
such a manner as may be agreed upon by the Parties in a
written instrument executed by both parties." Ex. 19.
Gondola purchased a train engine and five (5) passenger cars
in 2012 for delivery in April 2013 at a price of $58, 000.
Gondola began operating the train in April 2013 and it
grossed more than $58, 000 in 2013.
2014, the train grossed approximately $100, 000 and was on
the same pace in 2015 until La Gondola vacated the premises
on May 12, 2015. ...