Claim Response Beanie's Cafe - Wernimont
BARRY A. LINDAHL,
CITY ATTORNEY
_..... -","'"
'.,
MEMO
To:
Mayor Roy D. Buol and
Members of the City Council
.-.
,
l..L'
DATE:
March 14,2006
RE:
Tom and Anne Wernimont Claim (d/b/a Beanies Cafe)
Tom and Anne Wernimont, d/b/a Beanies Cafe, have made a claim for the loss of
income they allege they sustained when the sidewalks in the vicinity of Beanies Cafe at
1400 Central Avenue were closed on June 14 through June 16, 2005 during the street
and sidewalk reconstruction of Central Avenue. They claim that the sidewalks were
barricaded making it impossible for patrons to get to the front door of the cafe.
Enclosed is a copy of their letter to the City Manager. They claim a loss of income in
the amount of $1 ,010.69.
Although the City is not ordinarily liable for the temporary disruption of business for a
public improvement project, it appears that the sidewalk barricades may have
inadvertently been placed in such a manner as to prohibit access to the cafe. The
Wernimonts have agreed to accept a settlement in the amount of $505.35 which will be
paid by the City and by the contractor on the Central Avenue Project, Portzen
Construction.
I recommend City Council consideration and approval of the enclosed release and
authorization of payment by the City in the amount of $255.35 to the Wernimonts.
Enclosure
cc: Michael C. Van Milligen, City Manager
Cindy Steinhauser, Assistant City Manager
Gus Psihoyos, City Engineer
OFFICE OF THE CITY ATTORNEY DUBUQUE, IOWA
SUITE 330, HARBOR VIEW PLACE, 300 MAIN STREET DUBUQUE, IA 52001-6944
TELEPHONE (563) 583-4113/ FAX (563) 583-1040/ EMAIL balesq@cityofdubuque.org
02/08/2006 WED 14:45 FAX ~~~ BARRY LINDAHL
~002/002
BEANIES CAFE
TOM & ANNE WERNIMON.J______
l.:lOu C'~lllfKl .\v~.
Dul:m.'1t1e. .:i.1W~1 5:'.00 i
Ci6.1) ~_~7~r_;)5 B
November 30 2005
Dear Mr. Vanmilligan.
This letteria being .- to you .on behalf of my wife and mysolf We OWll and opanttc Beenics Cafe
lit 1400 Ccmra.l Ave. in Dubuque. On June 14"'.... went to opoll the One lit 5 a.m. as we do on Tuesday
mornings and we could not get in the ftom: doors of our Cafi!. Pro= ConstrUction was inatalling new
handicap ramps and a portion of the street on 14. side. The sidewalks had bmicades and yellow caution
tape across the fro.nt sidewallc making it impossible to get to the frollt door of tile cafe. I contacted City Hall
to see what was Boins on. While waililll! for the city engineer to notum my phone calI,. I had no choice but to
send aD employees home until further notice. Later in the day the city ensin= and the foreman from
Po= Construction CIIII1e to my place of business to talk with me. When I expressod my displeasure with
what was going on. 1 told them that with a lettCll', a phone call or some sort of notice we could have made
di1fcrent ammgement& When asked why we were never told of this, the city engineer said they thought
Pon:zen was aaing to inform us, portzcn's reply was they thought the city was going to inform us. Well, we
rJCVOl'received any fonn of notice. We feel this..... very inc<>nsider8te on bOlb the City of Dubuque and
Portzen COJ1StrUction. .
Finally, on Thursday morning, at 7:00 lUll. we retumeclto our Cafe with the intentions of opening
for busincs.s. We felt. for IIUIIIY reasons and including financial reasons we could nO longer afford the
int:erferencc ofbeing closed. Therefore we removed the bmicade8 in order to open our doors.
Our employees and <>urBelves rely on this busines5 as our sole income. Therefore, since our
employees had reported to wort( as scheduled, they were paid for !he time our business was closed for this
1IIlltter. We feel the City of Dubuque llDd Poltten CODSlIUction are respan.sible fol' rcimbUl1lement of our loss
ofbusincss and employees WIB"CS.
From !:be advise of our momey, we are writitlg this letter to !he City of Dubuque and Portzen
Construction. If we receive no answer orsatisfaction within 15 days of this letter, we are to contact our
attorney again for further action.
Below are ligures ofJosaes due to this matter. Because our income varies daily, I have computed
the average income item the previo"" m<>nth of bum.- to iigure our loss of income. Weare only asking
fur reimbursement of our income loss and our employees loss of wages. Our employees are paid an hourly
wage which again I bave computed.
INCOME
Tuesda.y 5 a.m. . 2 p.m.
Wcdncaday 5 a.m. - 2 p.m.
Thursday 12 mid . 7 a.m.
Sg33 44
WAGES
25 hours@$S.15 perbr
9 bOIll"5 @$5.50 per hr
$128.75
$ 48.50
$1010.69
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Sincerely, ....-.-~. "'""'-
~c/~r
&
RELEASE
The undersigned Tom Wernimont and Anne Wernimont, husband and wife, d/b/a
Beanies Cafe, each being of legal age, hereby acknowledge payment to us of the sum
of Five Hundred Five and 351100 Dollars ($505.35) in consideration of which payment
we each do hereby release, acquit and forever discharge the City of Dubuque, Iowa and
Portzen Construction and their officers, agents and employees and all other persons,
firms and corporations, from any and all liability whatsoever, including all claims,
demands and causes of action of every nature affecting us or either of us jointly or
severally, which we or either of us may have or ever claim to have by reason of:
Street and sidewalk reconstruction, Central Avenue, June 2005
As a further consideration of said payment we, each of us, jointly and severally,
hereby agree:
1. That this release covers all injuries and damages, whether known or not and
which may hereafter appear or develop arising from the matters above referred to.
2. That the above sum is all that we or either of us will receive for our claim and no
promise for any other or further consideration has been made by anyone.
3. That this release is executed as a compromise settlement of a disputed claim,
liability for which is expressly denied by the party and/or parties released, and the
payment of the above sum does not constitute an admission of liability on the part of
any person or entity.
4. That we are executing this release solely in reliance upon our own knowledge,
belief and judgment and not upon any representations made by the party released or
others in his behalf.
5. That we will keep the terms of this Release confidential and will not divulge the
contents of this Release or the settlement of this claim to any person or entity, except
for professional accountants or attorneys employed on our behalf. If we are required by
any law, court or agency to divulge the terms of this Release or the settlement, we will
provide 30 days notice to the released parties before divulging any such information.
THAT WE HAVE EACH READ THE FOREGOING RELEASE, AND UNDERSTAND
ITS TERMS AND FREELY AND VOLUNTARILY SIGN THE SAME.
Dated at Dubuque, Iowa this
day of
,2006.
CAUTION: THIS IS A RELEASE - READ BEFORE SIGNING!
Witnesses:
Tom Wernimont
Anne Wernimont