Lease Agree Busted Lift Miller Enterprises
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MEMORANDUM
May 31,2005
TO:
The Honorable Mayor and City Council Members
FROM:
Michael C. Van Milligen, City Manager
SUBJECT: Lease Agreement with Miller Enterprises of Dubuque, Inc. d/b/a The
Busted Lift
Assistant City Manager Cindy Steinhauser is recommending approval of a lease with
Miller Enterprises of Dubuque, Inc. d/b/a The Busted Lift for an approximately five
month period for an outdoor service area at the back of the Busted Lift on public right-
of-way.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
(VJ~~L
Michael C. Van Milligen
MCVM/jh
Attachment
cc: Barry Lindahl, Corporation Counsel
Cindy Steinhauser, Assistant City Manager
LEASE AGREEMENT
BETWEEN THE CITY OF DUBUQUE
AND
Miller Enterprises of Dubuque, Inc. d/b/a THE BUSTED LIFT
THIS LEASE AGREEMENT (the "Lease") made as of the day of
,2005, between the CITY OF DUBUQUE, IOWA, a municipal corporation
(Lessor) and Miller Enterprises of Dubuque, Inc. d/b/a THE BUSTED LIFT (Lessee).
ARTICLE I
DEMISE AND TERM
1.1. I n 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
commencing on the ih day of June, 2005 and terminating at 11 :59 p.m. on the 15th day
of November 2005 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"
RENT
2.1. Lessee shall pay Lessor the entire rent for the Demised Premises of $1,580
on the ih day of June, 2005, 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 Improvements 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
superior 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 force
with respect thereto.
7.2. Lessee shall adhere to the City of Dubuque's criteria for outdoor service of
alcoholic beverages on public right 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 anyone 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 during 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 during 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 XI
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 XII
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
written notice from Lessor setting forth the nature of Lessee's default, then and in any
such event, Lessor shall have the right at its option, on written notice to Lessee, to
terminate this Lease, and all rights 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 XIII
QUIET ENJOYMENT
13.1. Lessor covenants that at all 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 XIV
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 alllettings and occupancies, free and clear of all liens and
encumbrances
ARTICLE XVI
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:
Robert D. Miller,
Miller Enterprises of Dubuque, Inc.
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. Governing 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:
MILLER ENTERPRISES OF DUBUQUE, INC.
d/b/a
THE BUSTED LIFT
Attest:
By:
Robert D. Miller
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Exhibit A
Busted Lift Outdoor Area and Access
/ Edge of street pavement
42" Clear area for access
42" Clear area for sidewalk
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42" Clear area for access
Busted Lift
/42" Clear area for sidewalk
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Rear emergency exi
Boundary of outdoor area
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Open Area(s) = 665 sq.ft.
Sidewalk and Access Area = 215 sq.ft.
Exhibit B
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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 180 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 low 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