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Busted Lift Patio Lease - Alcohol i5~~~E ~ck-~ MEMORANDUM April 11, 2006 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 is recommending approval of a lease with Miller Enterprises of Dubuque, Inc. d/b/a The Busted Lift for an outdoor service area at the back of the Busted Lift on public right-of-way. The term of this lease is May 1, 2006 through November 15, 2006. I concur with the recommendation and respectfully request Mayor and City Council approval. /nj C]/1(t Mic ael C. Van Milligen MCVM/jh Attachment cc: Barry Lindahl, Corporation Counsel Cindy Steinhauser, Assistant City Manager (...' Dii~~E ~~~ MEMORANDUM April 11, 2006 TO: FROM: Michael C. Van Milligen, City Manager rAIl (J/ Cindy Steinhauser, Assistant City Manager ~ v Busted Lift Agreement for outdoor service on public right of way SUBJECT: Introduction The purpose of this memorandum is to request City Council approval of a Lease Agreement between the City of Dubuque and Miller Enterprises d/b/a The Busted Lift 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. The criteria are as follows: . 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 Recently the City of Dubuque received a request from Tom Miller of the Busted Lift for the use of public right of way to serve alcoholic beverages. Mr. Miller has previously had a lease agreement with the City from June - November 2004 for this same purpose. During the lease period, the City had no major issues related to the outdoor service on public right of way. I have reviewed this Agreement with City Attorney Barry Lindahl and he has approved the language as proposed. I have also reviewed the Agreement with Tom Miller and he is agreeable to the terms and conditions. Reauest The requested action is for City Council to approve the lease agreement between the City of Dubuque and Miller Enterprises d/b/a the Busted Lift. Cc: Barry Lindahl, Corporation Counsel Ken TeKippe, Finance Director Tom Miller, Owner, The Busted Lift LEASE AGREEMENT BETWEEN THE CITY OF DUBUQUE AND MILLER ENTERPRISES OF DUBUQUE, INC. D/B/A THE BUSTED LIFT This Lease Agreement (the "Lease") dated for reference purposes the day of , 2006, is made and entered into by and 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. 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 commencing on the 1st day of May, 2006 and terminating at 11 :59 p.m. on the 15th day of November 2006 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 the rent for the Demised Premises of $300.00 per month beginning on the 1st day of May, 2006, and on the first day of June through October, 2006, and $150.00 on the 1st day of November, 2006, 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 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 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, approved by the City Manager, on the north section of the Demised Premises. ARTICLE VI COMPLIANCE WITH LAW6.1. During the term of this Lease, Lessee shall comply with all laws applicable to Lessee's use of the Demised Premises. 6.2. This Lease shall be subject to Lessee maintaining a Class C Liquor License for the Leased Premises during the term of the Lease. 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 all lettings 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. 17.2. 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. 17.3. 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. 17.4. 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. 17.5 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. 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