Wednesday, March 14, 2012

Pricey New Union Square Restaurant Operator Named- Lawsuit Being Prepared

"Licensee shall make every effort to keep alcohol consumption discrete." - Union Square Park Pavilion License agreement between Chef Driven Market and the Parks Department.

The city has quietly approved a new fifteen-year deal to build a controversial restaurant in the Children's Pavilion in Union Square Park with upscale prices. A previous deal collapsed in September. Critics of the plan say despite vehement community opposition, Mayor Michael Bloomberg and The Union Square Partnership (BID) are attempting to take away thousands of square feet of potential recreation and community space for six months of the year in order to accommodate a seasonal restaurant.

The community wants the pavilion renovated and restored to its former uses which include a sheltered, indoor recreation center that serves a variety of year-round recreation and free public uses.

The agreement also allows the concessionaire to take parkland north of the pavilion for an outdoor seating area to serve alcohol. The park's northern plaza has historically been used for first amendment and free speech activity for more than 130 years.

A new lawsuit is being prepared. (Photos: © Geoffrey Croft/NYC Park Advocates)


By Geoffrey Croft

The City has finally chosen another operator to build a controversial restaurant in the Children's Pavilion in Union Square Park, NYC Park Advocates has learned.

Simon Oren's Chef Driven Market, LLC., the owner of a number of high-end restaurants was picked as the new concessionaire of a proposed seasonal restaurant under a fifteen-year deal. The pricey eatery and bar would be open from 7 am to 12 midnight and serve breakfast, lunch and dinner. Brunch prices up to $ 19.95 with omelets up to $17.95; dinner entrées from $ 13.95 to $ 33.95; and breakfast fair up to $ 15.95, and deserts for $ 14.95 according to the schedule of approved menu items and pricing plan.

The facility would be open from April 15 - October 15th - when the public's need for and use of park space is the greatest.

For years administration officials have repeatedly told the community it would be moderately priced establishment in one of its many attempts to blunt public criticism for the restaurant plan. They also promised to go back to the community board for approval which they never bothered to do.

The concessionaire would also be allowed to serve alcohol outside in the north end of the park's historic plaza. The area would extend 17 feet from the pavilion and include an outdoor seating area which "shall have a cordoned off portion for serving alcoholic beverages."

Hide in Plain Sight? "Licensee shall make every effort to keep alcohol consumption discrete," according to the license agreement between Chef Driven Market and the Parks Department.

During operating hours Licensee shall assign, "two or more employees at entrances to ensure that outgoing customers do not remove alcohol from the Café area." The concessionaire is also required to train all staff members to monitor and enforce the designated alcohol consumption areas.

Alcohol prices were conspicuously absent from the approved items and pricing plan.

And if the concessionaire is unable to obtain an alcohol license from the State Liquor Authority, "the parties shall hereto shall cooperate in good faith to agree to an equitable solution," according to the agreement.

The large operation will be required to employ at least 99 employees including 40 servers and assistants, 19 kitchen staff , 7 bartenders, and 3 security staff.

The development and operation of a year-round satellite kiosk located on 17th Street, west of the pavilion is also part of the agreement. The stand alone kiosk is allowed to sell food and beverages, newspapers and magazines.

Tango inside the Union Square Park pavilion - June 18, 2011. For more than 7 years the community around Union Square Park has been fighting for the historic pavilion to be restored and used exclusively for year-round children and community uses like the pavilion in Columbus Park in Chinatown. The Union Square Partnership (BID) and the Mayor however want it used for a restaurant. In an effort to blunt public criticism for the commercial use of the public parkland, concessionaire has agreed to provide "community programming" for at least 2 hours, once a week out of a total of 119 hours the establishment is open weekly. They have also agreed to a minimum of 15 hours over six months (out of 3094 total operating hours) for Greenmarket educational tours and classes for children.

The Simon Oren owned Chef Driven restaurant group includes more than a dozen New York restaurants, cafés and fast food businesses including the Tour de France Restaurant Group, Barbounia, Nizza, Deluxe (on the Upper West Side), and the Five Napkin Burger chain.

Under the terms of the deal the concessionaire will pay the city the higher of a minimum annual fee (Year 1: $300,000; Year 2: $309,000; Year 3: $318,270; Year 4: $327,818; Year 5: $337,653; Year 6: $347,782; Year 7: $358,216; Year 8: $368,962; Year 9: $380,031; Year 10: $391,432; Year 11: $403,175; Year 12: $415,270; Year 13: $427,728; Year 14: $440,560; Year 15: $453,777) or ten (10) percent of gross receipts. Gross receipts also includes sales from catering food and beverage services.

Under the terms of the previous deal - which collapsed in September when celebrity chef Don Pintabona backed out - fees were supposed to start at a minimum of $400,000 a year or 18 percent of gross revenues and escalate by 5% each year of the 15-year license term. The concessionaire had also committed to a minimum capital investment of over $1.1 million to build the seasonal restaurant. Luna Cafe - occupied an south of pavilion paid the city $ 217,000 in its last year of operation.

Critics of the plan have long contended the restaurant will take away desperately needed year-round play space from children and a vital community space for the neighborhood. The area around Union Square Park has the lowest amount of playground space but the highest concentration of restaurants in the entire city. In CB 5 there are only two playgrounds but more than 150 eating establishments, bars and markets within just a two-block radius of the park. To make matters worse the Parks Department recently removed a popular playground in the park without any community input or notification.

Critics also charge that allowing the pavilion to be converted into a seasonal restaurant will dramatically alter the Park's historic first amendment and free speech uses. For more than a 130 years the Park's pavilions have served as a backdrop for countless labor rallies and social protests. It is this important role which served as one of the main reasons why the park was designated a National Historic Landmark in 1997.

Protestors gather in Union Square during a day of action by the Occupy Wall Street movement in the area near the New York Stock Exchange and Wall Street in New York, New York, USA, on 17 November 2011.  EPA/JUSTIN LANE

Table For Two? Eliminating the park's historic free speech and rally space. The proposed new seasonal restaurant including the outdoor seating area is expected to impede on the parks' historic first amendment and free space role in the Northern plaza as the city will be less inclined to issue permits for large gatherings in order to protect the commercial interests of the restaurant. (Photo: Justine Lane/EPA)

Union Square Park's historic pavilion located on the northern end of the park was once again the backdrop for social protest movement as thousands of people gathered for a Occupy Wall Street Student Rally on November 17, 2011.

Addressing the crowd from the Pavilion - November 17, 2011 (Photo: Andy Kuhn)

The Union Square Community Coalition, one of the City's oldest park advocacy organizations, has vowed to go back to court to prevent the City and the BID from taking way potential play space from children.

For more than seven years a broad based coalition has fought to restore the historic pavilion for children and community uses year round.

In 2004, Save Union Square Park, a grass roots, community - based campaign was organized by NYC Park Advocates to advocate for the needs of the community. With the help and support of 57 community organizations, elected officials and a broad-based labor coalition, the campaign succeeded in defeating an irresponsible plan to create a year-round restaurant and greatly increased the amount of playground space, much of it recaptured from play areas lost to the previous seasonal cafe. The new playground doubled the amount of playground space in the park. The original Union Square Partnership playground plan provided an increase of just 15%.

The bar/restaurant would be inches away from a heavily utilized playground.
The area around Union Square Park has the lowest amount of playground space and the Highest concentration of restaurants in the entire city. Compounding the problem, the Parks Commissioner recently eliminated a popular sand playground located on the West side of the
park without any community consultation.

Winter Wonderland? Under the city's plan children are expected to play in the open air pavilion under heating lamps located in the ceiling for the remaining six months of the year. Instead of utilizing renovated and newly created indoor space for children and the community they built a kitchen instead. Programming will be severely limited due to space the weather restrictions.

A new stand-alone food kiosk on 17th Street, west of the pavilion and playground is also part of the deal. It will replace a newsstand which was formerly at that location and will offer food and beverages year-round. (Photos: © Geoffrey Croft/NYC Park Advocates)

Legal Background:

After years of failing to address the community's wishes, Union Square Community Coalitionunfortunately was forced to seek relief though the legal system. On April 19, 2008, the Union Square Community Coalition filed a lawsuit (USCC v. NYC Parks, Index No. 08/105578)
challenging the Parks Department and Union Square Partnership's (BID) plans to install a restaurant in the historic pavilion.

On April 22, 2008, New York State Supreme Court Justice E. H. Stackhouse issued a Temporary Restraining Order (TRO) against the City/BID thus halting the project in all respects except those necessary to make site safe for the public. On May 7, 2008, State Superior Court Justice Jane S. Solomon allowed construction to proceed on the renovation of the North end of the park but extended the injunction which prevented the operation of a restaurant, or the installation of fixtures for a restaurant, pending further order of the Court. In so doing, the court found that USCC is likely to prevail on its central claim that without state legislative approval, the restaurant would be an unlawful alienation of parkland once that claim is ripe.

The City moved to dismiss the case, claiming it is both unripe (because, allegedly, several steps remain in the process before a restaurant concession could be offered) and non-meritorious.

On March 30, 2009 Justice Solomon dismissed the lawsuit ruling the suit is too early to file and is not ready (ripe) until the City is further along with the restaurant. The main issue, whether or not the restaurant needs to go through the state legislation was not decided.

In dismissing the lawsuit Justice Solomon also reaffirmed a legal position that not all restaurants in all parks are universally acceptable.

Read More:

City Picks Restaurant Group to Run Union Square Park Cafe
DNAinfo - March 14, 2012 By Mary Johnson

Crain's New York Business - March 14, 2012 - By Daniel Massey

Metro NY - March 14, 2012 - Alison Bowen

5 Napkin Guys To Run Union Square North Restaurant
gothamist - March 14, 2012 - By Garth Johnston

The Villager - March 15, 2012 - By Albert Amateau

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