Busted Lift Patio Lease - Alcohol
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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.
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Mic ael C. Van Milligen
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Attachment
cc: Barry Lindahl, Corporation Counsel
Cindy Steinhauser, Assistant City Manager
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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