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Busted Lift, J Finn, Outdoor SeMEMORANDUM May 28, 2003 TO:The Honorable Mayor and City Council Members FROM:Michael C. Van Milligen, City Manager SUBJECT:Busted Lift Agreement for Outdoor Service on Public Right-of-Way Assistant City Manager Cindy Steinhauser requests City Council approval of a Lease Agreement between the City of Dubuque and John Finn for the use of public right-of- way for outdoor service at the Busted Lift. This agreement was negotiated consistent with the criteria approved by City Council in July 2002. I concur with the recommendation and respectfully request Mayor and City Council approval. Michael C. Van Milligen MCVM/jh Attachment cc: Barry Lindahl, Corporation Counsel Cindy Steinhauser, Assistant City Manager Cindy Steinhauser, Assistant City Manager MEMORANDUM May 27, 2003 TO:Michael C. Van Milligen, City Manager FROM:Cindy Steinhauser, Assistant City Manager SUBJECT:Busted Lift Agreement for outdoor service on pubic right of way Introduction The purpose of this memorandum is to request City Council approval of a Lease Agreement Between the City of Dubuque and John Finn for the use of public right of way to serve alcoholic beverages. Discussion In July 2002, the City Council approved criteria for outdoor service of alcoholic beverages on public right of way. Attached is Exhibit B, which identifies the list of criteria, approved by City Council. Included is the requirement to meet all State and City permitting and insurance requirements. Also included is the requirement for fencing, outdoor seating and tables, no outdoor music and a minimum of 16 sq. ft. per person occupancy load. As indicated, any violation of these conditions could result in immediate revocation of permission to use the right of way. Recently, the City of Dubuque has been in negotiations with John Finn, owner of the Busted Lift for the use of public dght of way directly east of his and an adjoining property to provide outdoor service. Attached is Exhibit A which identifies the area involved in the negotiations and the total area available to rent for this use. As indicated, a net total of 665 square feet of space is being requested to lease. This is after accommodations have been made for ingress/egress as well as a sidewalk east of the proposed lease area. Also attached is the Agreement that outlines the terms and length of the lease between the City and John Finn. They include: · Lease dates beginning on or about June 3, 2003 (depending upon meeting all permit and insurance requirements); · Lease end date of November 15, 2003; · Rental rate of $350 month payable upon the first day of each month. This equates to $5.41/square foot (the average for similar, indoor finished space in this district averages $6.29/square foot); · Occupancy shall not exceed 41 people in the open area in exhibit A at any one time; · Standard indemnification language and insurance requirements to protect the City's interest; and · Failure to meet any of the conditions set forth in the lease may result in immediate termination of the lease. I have reviewed this Agreement with Corporation Counsel Barry Lindahl and he has approved the language as proposed. I have also reviewed the Agreement with John Finn and he is agreeable to the terms and conditions. Request The requested action is for City Council to approve the lease agreement between the City of Dubuque and John Finn d/b/a The Busted Lift. Cc:Barry Lindahl, Corporation Counsel Ken TeKippe, Finance Director Klm Wadding, Police Chief Dan Brown, Fire Chief Rich Russell, Building Services Manager Sue Winter, Permit Clerk Mary Rose Corrigan, Public Health Specialist John Finn, Owner, The Busted Lift LEASE AGREEMENT BETWEEN THE CITY OF DUBUQUE AND JOHN FINN d/b/a THE BUSTED LIFT THIS LEASE AGREEMENT (the "Lease") made as of the __day of ,2003, between the CITY OF DUBUQUE, IOWA, a municipal corporation (Lessor) and JOHN FINN d/b/a THE BUSTED LIFT (Lessee). ARTICLE I DEMISE AND TERM 1.1. In consideration of the rents hereinafter reserved and the terms, covenants, conditions and agreements set forth in this Lease, Lessor hereby leases to Lessee the real property described in Exhibit A attached to and made a part of this Lease, together with any and all easements and appurtenances thereto and subject to any easements are restrictions of record (the "Demised Premises"), to have and to hold for a term of Six (6) months commencing on the 3rd day of June, 2003 and terminating at 11:59 p.m. on the 15th day of November 2003 subject to all of the terms, covenants, conditions and agreements contained herein. 1.2. Lessee's use of the Demised Premises shall be exclusively for the operation of Lessee's current business at 180 Main Street. 1.3. Lessor makes no representations or warranties of any kind as to the condition, including the environmental condition, of the Demised Premises and Lessee accepts the Demised Premises as is. ARTICLE II RENT 2.1. Lessee shall pay Lessor rent for the Demised Premises of $300.00 per month payable on the third day of June 2003, and on the first day of each month thereafter, at City Hall, c/o Finance Director. Lessee shall also pay the costs for all utilities serving the Demised Premises. ARTICLE III IMPROVEMENTS 3.1. On delivery of possession of the Demised Premises to Lessee, Lessee shall be entitled to construct on the Demised Premises all improvements as agreed upon in writing by the Lessor and Lessee (the "Improvements"). Lessor, through its City Manager, shall have the right to approve the design, appearance and quality of any such Improvements. All improvements presently on the Demised Premises and all Improvements hereafter constructed on the Demised Premises are and shall be the property of Lessee during the continuance of the term of this Lease and upon any termination of this Lease, by reason of any cause whatsoever, Lessee shall remove all such Improvememts and restore the Demised Premises to the condition it was in immediately prior to the commencement of the term of this Lease and to the full satisfaction of Lessor. ARTICLE IV ENCUMBRANCE OF LESSEE'S LEASEHOLD INTEREST 4.1. Lessee shall not encumber by mortgage, deed of trust, or other instrument, its leasehold interest and estate in the Demised Premises, or any Improvements placed by Lessee on the Demised Premises, as security for any indebtedness of Lessee. ARTICLE V REPAIRS AND MAINTENANCE 5.1. Lessee shall at all times during the term of this Lease, at Lessee's own costs and expense, keep the Demised Premises and the Improvements thereon, in supedor order, condition, and repair, casualties and ordinary wear and tear excepted. Lessee shall keep the Demised Premises in such condition as may be required by law and by the terms of the insurance policies furnished pursuant to this Lease, whether or not such repair shall be interior or exterior, and whether or not such repair shall be of a structural nature. Upon reasonable notice to Lessee, Lessor may, at its discretion, conduct an inspection of the Demised Premises to determine Lessee's compliance with this Article VI. 5.2. Lessee shall be responsible for daily trash removal from the Demised Premises. 5.3. There shall be no outdoor storage of equipment, vehicles, construction materials or any other personal property on the Demised Premises. 5.4 Lessee shall be responsible for the installation of traffic barriers on the north section of the leased premises. These barriers shall be approved by the City Manager's office. ARTICLE VI COMPLIANCE WITH LAW 6.1. During the term of this Lease, Lessee shall comply with all laws applicable to Lessee's use of the Demised Premises. 6.2. Subject to Lessee maintaining a Class C Liquor License during the term of this lease for the Leased Premises. ARTICLE VII USE OF DEMISED PREMISES 7.1. Lessee shall not use or allow the Demised Premises or any buildings or Improvements thereon or any appurtenances thereto, to be used or occupied for any unlawful purpose or in violation of any certificate of occupancy. Lessee shall not suffer any act to be done or any condition to exist within the Demised Premises or in any Improvement thereon, or permit any article to be brought therein, which may be dangerous, unless safeguarded as required by law, or which may, in law, constitute a nuisance, public or private, or which may make void or voidable any insurance in rome with respect thereto. 7.2. Lessee shall adhere to the City of Dubuque's criteria for outdoor service of alcoholic beverages on public dght of way set forth in Exhibit B. Lessee shall also adhere to all permitting requirements set forth in the City of Dubuque Special Event permit process. Failure to comply with any such criteria or requirements will result in revocation of this Lease. 7.3. Lessee shall adhere to the City of Dubuque's criteria for occupancy on public right of way as set forth in Exhibit B. Lessee shall not allow the occupancy for all of the open areas combined shown on Exhibit A to exceed 41 people at any one time. 7.4 Prior to the commencement of this Lease, Lessee shall provide Lessor with copies of all leases to the property adjacent to the Demised Premises and to which Lessee is a party. ARTICLE VIII INSURANCE 8.1. Lessee shall at all times dudng the term of this Lease maintain insurance as set forth in the attached Insurance Schedule. ARTICLE IX INDEMNIFICATION 9.1. Indemnification of Lessor. Lessee shall defend,, indemnify, and save harmless Lessor from and against all liabilities, obligations, claims, damages, penalties, causes of action, costs and expenses (including without limitation, reasonable attorneys' fees and expenses) imposed upon or incurred by or asserted against Lessor by reason of (a) any accident, injury to, or death of persons or loss of or damage to property occurring on or about the Demised Premises during the term of this Lease and resulting from any act or omission of Lessee or anyone claiming by, through, or under Lessee during the term of the Lease; and (b) any failure on the part of Lessee to perform or comply with any of the terms of this Lease. In case any action, suit, or proceeding is brought against Lessor by reason of such occurrence, Lessee shall, at Lessee's expense, resist and defend such action, suit, or proceeding, or cause the same to be resisted and defended by counsel approved by Lessor. ARTICLE X CONDEMNATION 10.1. If at any time dudng the term of this Lease all or substantially all of the Demised Premises or the improvements thereon shall be taken in the exercise of the power of eminent domain by the State of Iowa or the United States, then this Lease shall terminate on the date of vesting of title in such taking and any prepaid rent shall be apportioned as of said date. ARTICLE Xl ASSIGNMENT AND SUBLETTING 11.1. Lessee shall not assign or transfer this Lease or sublease the whole or any part of the Demised Premises. ARTICLE Xll DEFAULT 12.1. If Lessee shall fail or neglect to observe, keep, or perform any of the covenants, terms, or conditions contained in this Lease on its part to be observed, kept, or perforated, and the default shall continue for a period of five(5) days after wdtten notice from Lessor setting forth the nature of Lessee's default, then and in any such event, Lessor shall have the dght at its option, on written notice to Lessee, to terminate this Lease, and all dghts of Lessee under this Lease shall then cease. Lessor, without further notice to Lessee, shall have the right immediately to enter and take possession of the Demised Premises with or without process of law and to remove all personal property from the Demised Premises and all persons occupying the Demised Premises and to use all necessary force therefore and in all respects to take the actual, full, and exclusive possession of the Demised Premises and every part of the Demised Premises as of Lessor's original estate, without incurring any liability to Lessee or to any persons occupying or using the Demised Premises for any damage caused or sustained by reason of such entry on the Demised Premises or the removal of persons or property from the Demised Premises. ARTICLE Xlll QUIET ENJOYMENT 13.1. Lessor covenants that at ail times during the term of this Lease, so long as Lessee is not in default hereunder, Lessee's quiet enjoyment of the Demised Premises or any part thereof shall not be disturbed by any act of Lessor, or of anyone acting by, through, or under Lessor. ARTICLE XlV WAIVER 14.1. No waiver by Lessor of any breach by Lessee of any term, covenant, condition, or agreement herein and no failure by Lessor to exercise any right or remedy in respect of any breach hereunder, shall constitute a waiver or relinquishment for the future of any such term, covenant, condition, or agreement or of any subsequent breach of any such term, covenant, condition, or agreement, nor bar any right or remedy of Lessor in respect of any such subsequent breach, nor shall the receipt of any rent, or any portion thereof, by Lessor, operate as a waiver of the rights of Lessor to enforce the payment of any other rent then or thereafter in default, or to terminate this Lease, or to recover the Demised Premises, or to invoke any other appropriate remedy which Lessor may select as herein or by law provided. ARTICLE XV SURRENDER 15.1. Lessee shall, on the last day of the term of this Lease or upon any termination of this Lease hereof, surrender and deliver up the Demised Premises, into the possession and use of Lessor, without fraud or delay and in good order, condition, repair, free and clear of all lettings and occupancies, free and clear of all liens and encumbrances ARTICLE XVll NOTICES 16.1. All notices, demands, or other writings in this Lease provided to be given or made or sent, or that may be given or made or sent, by either party to the other, shall be deemed to have been fully given or made or sent when made in writing and deposited in the United States mail, registered and postage prepaid, and addressed as follows: TO LESSOR: City of Dubuque, Iowa C/o City Manager City Hall 50 W. 13th St. Dubuque, IA 52001 TO LESSEE: John Finn d/b/a The Busted Lift 180 Main St. Dubuque, IA 52001 The address to which any notice, demand, or other writing may be given or made or sent to any party as above provided may be changed by written notice given by the party as above provided. ARTICLE XVII MISCELLANEOUS 17.1. Time of the Essence. Time is of the essence of this Lease and all of its provisions. 19.2. GoverninR Law. It is agreed that this Lease shall be governed by, construed, and enforced in accordance with the laws of the State of Iowa. 19.3. Paragraph Headings. The titles to the paragraphs of this Lease are solely for the convenience of the parties and shall not be used to explain, modify, simplify, or aid in the interpretation of the provisions of this Lease. 19.4. Modification of Agreement. Any modification of this Lease or additional obligation assumed by either party in connection with this Lease shall be binding only if evidenced in writing signed by each party or an authorized representative of each party. 19.5. Parties Bound. This Lease shall be binding on and shall inure to the benefit of and shall apply to the respective successors and assigns of Lessor and Lessee. All references in this Lease to "Lessor" or "Lessee" shall be deemed to refer to and include successors and assigns of Lessor or Lessee without specific mention of such successors or assigns. IN WITNESS WHEREOF, the parties hereto have caused this Lease to be executed as of the day and year first above written. LESSOR: CITY OF DUBUQUE, IOWA Attest: By: Michael C Van Milligen, City Manager LESSEE: THE BUSTED LIFT Attest: By: John Finn, d/b/a The Busted Lift Rear entr~ Busted Lift Outdoor Area and Access of outdoor are~ of street pavement Clear area for access Open Area Clear area ',, Exhib t A for sidewalk ~rea for access Open Area Clear area for sidewalk Busted Lift Rear emergency ~65 sq.ft. Sidewalk and Access Area = 215 sq.ff. Open Area · Boundary of dutdoor area Exhibit B MEMORANDUM July 29, 2002 TO:Michael C. Van Milligen, City Manager FROM:Cindy Steinhauser, Assistant City Manager SUBJECT:Criteria for outdoor service of alcoholic beverages on public right of way Introduction The purpose of this memorandum is to recommend the criteria for use of public right of way for outdoor service of alcoholic beverages. Discussion Recently the City of Dubuque received a request from John Finn of the Busted Lift to provide outdoor service of alcoholic beverages on public right of way. The right of way area is immediately east of the Busted Lift located at 150 Main Street. Attached is a sketch of the 15' x 12' (180 sq. ft.) public right of way that Mr. Finn is proposing to locate this service. This drawing is not to scale. As indicated on the sketch the seating would be for 32 people (8 tables, 4 patrons/table). This is a concept that has been discussed as the development of entertainment districts evolve in downtown Dubuque and at the Port of Dubuque. Currently, however, there is no policy in place to regulate this activity, which does not fall under the Special Event Permit Application process. In order to respond to this matter, members of the Special Event Permit Application committee including Police Chief Wadding, Capt Paula Gieseman, Tim Link, Sue Winter, Bill Schlickman, Jane Smith and I have been meeting to discuss criteria to recommend for such a policy. This process has included researching policies in other Iowa communities, requirements at the State level regarding Dram Shop insurance and input from land use and planning consultants on space needs. In reviewing similar sized communities in Iowa such as Iowa City, Cedar Rapids and Des Moines, there are no such policies for outdoor service on public right of way as this type of use usually occurs on private property. In looking at State Dram Shop requirements, outdoor service for a bar or tavern requires 1 ) a special outdoor service application, 2) a sketch of the area to be used as outdoor service (including required fencing), and 3) a letter from the insurance company indicating the outdoor service area is covered. Planning Services Manager Laura Carstens has indicated that outdoor service for a restaurant, bar or tavern would be interpreted as an accessory use and would not require rezoning. Lastly, in discussing space needs for seating for this type of request, HOK Venue event and land use architects have suggested that a standard of 20 sq. ft. per person is typical. In visiting with Bob Kost of URS/BRW, who managed the Port of Dubuque master site plan, he indicated that this standard could be as Iow as 16 sq. ft. per person including tables and chairs. Based upon this research, the committee recommends the following criteria for outdoor service of alcoholic beverages on public right of way: · The licensee must meet State of Iowa Dram Shop requirements; · The licensee must meet City of Dubuque insurance requirements as set forth in the Special Event Permit Application; · The licensee must provide adequate fencing to separate the service area from traveled portion of the right of way; · The licensee must provide outdoor seating and tables in service area; · The licensee must comply with all other City ordinance requirements, including, but not limited to, noise, fire and building code and engineering standards; The licensee must provide a minimum of 16 sq. ft. per person in the service area; · The licensee must comply with the restriction of no outdoor music; and · The licensee must agree that any violation of these conditions will result in the immediate revocation of permission to use the right of way In reference to the request of the Busted Lift, his proposed service area is 180' sq. ft. Based upon the recommended formula, this would provide seating capacity for approximately 11 people. Also attached is correspondence from the Engineering Department, including minutes of a meeting held with Mr. Finn. Included is a list of other concerns raised by city staff and other criteria recommended prior to City approval of outdoor service for Mr. Finn. Recommendation I recommend that the City Council approve the above criteria for use of public right of way for outdoor service of alcoholic beverages. Cc;Chief Wadding Capt. Paula Gieseman Sue Winter, Permit Clerk Tim Link, Health Inspector Bill Schlickman, Civil Engineer Jane Smith, Sidewalk Inspector Mike Koch, Public Works Director Laura Carstens, Planning Services Manager INSURANCE SCHEDULE A INSURANCE REQUIREMENTS FOR TENANTS AND LESSEES OF CITY PROPERTY OR VENDORS (SUPPLIERS, SERVICE PROVIDERS) TO THE CITY OF DUBUQUE 1. All policies of insurance required hereunder shall be with an insurer authorized to do business in Iowa. All insurers shall have a rating of A or better in the current A.M. Best Rating Guide. 2. All policies of insurance required hereunder shall be endorsed to provide a thirty (30) day advanced notice to the City of Dubuque of any cancellation of the policy prior to its expiration date. This endorsement supersedes the standard cancellation statement on the Certificate of Insurance. 3. shall furnish Certificates of Insurance to the City of Dubuque, Iowa for the coverage required in Paragraph 7. Such certificates shall include copies of the endorsements set forth in Paragraphs 2 and 5 to evidence inclusion in the policy. 4. Each Certificate of Insurance shall be submitted to the contracting department of the City of Dubuque, Iowa prior to commencement of work/service. (The contracting department shall submit the certificates to the Finance Director.) 5. All policies of insurance required in Paragraph 7 shall include the City of Dubuque, Iowa under the attached Additional Insured Endorsement (CG2026) and the attached Governmental Immunities Endorsement. 6. Failure to provide minimum coverage shall not be deemed a waiver of these requirements by the City of Dubuque. Failure to obtain or maintain the insurance required herein shall be considered a material breach of this agreement. 7. shall be required to carry the following minimum insurance coverages or greater if required by law or other legal agreement: COMMERCIAL GENERAL LIABILITY: General Aggregate Limit Products-Completed Operation Aggregate Limit Personal and Advertising Injury Limit Each Occurrence Limit Fire Damage Limit (any one occurrence) Medical Payments 2,000,000 1,000,000 1,000,000 1,000,000 50,000 5,000 Commercial general liability shall be written on an occurrence form, not a claims made form. Coverage to include premises-operation-products-completed operations, independent contractors coverage, contractual liability, broad form property damage, and personal injury. UMBRELLA OR EXCESS LIABILITY: LIQUOR OR DRAM SHOP LIABILITY: * To be determined on a case-by-case basis by Finance Director. $ $ ~OLICY NUMBER: COMMERCIAL G-'~E,~,L L~BI[JTY THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED - DESIGNATED PERSON OR ORGANIZATION This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE FART. SCHEDULE Name of Pemon or O~eniz3tion: The Cit7 of Dubuque, includin~ all its elected and appointed officials, all-its emploTees and volunteers, all its boards, cow. w4ssions an~/er authorities an~ their board members, amploTees, and volun:sers. (It' no entry appears above, informs=ion required to comptete this endorsement will be shown in the Deciaratioes as applicable to this endorsement.) WHO IS AN INSURED {Section II) is amended to include as an insured the person or organization shown in the Schedule as an insured but onty with respect to liabifity arising out ct'your opera~Jcns or premises owned by or rented to you. CG 20 2S 11 85 CITY OF DUBUQUE, IOWA GOVERNMENTAL IMMUNITIES ENDORSEMENT Nonwaiver of Governmental Immtmity The insurance carrier expressly agrees and states that the purchase of this policy and the including of the City of Dubuque, Iowa as an Additional Insured does not waive any of the defenses of governmental immunity available to the City of Dubuque, Iowa under Code of Iowa Section 670.4 as it is now exists and as it may be amended form time to time. ~ The insurance carrier further agrees that this policy of insurance shall cover only those claims not subject to the defense of governmental immunity under the Code of Iowa Section 670.4 as it now exists and as it may be amended from time to time. Those claims not subject to Code of Iowa Section 670.4 shall be covered by the terms and conditions of this insurance policy. Assertion of Government Immunity.. The City of Dubuque, Iowa shall be responsible for asserting any defense of governmental immunity, and may do so at any time and shall do so upon the timely written request of the insurance carrier. Non-Denial of Coverage. The insurance carrier shall not deny coverage under this policy and the insurance carrier shall not deny any of the rights and benefits accruing to the City of Dubuque, Iowa under this policy for reasons of governmental immunity unless and until a court of competent jurisdiction has ruled in favor of the defense(s) of governmental immunity asserted by the City of Dubuque, Iowa. No Other Change in Policy. The above preservation of governmental immunities shall not otherwise change or alter the coverage available under the policy.