Adult Entertainment Settlement_The OfficeTHE CITY OF
DUB E MEMORANDUM
Masterpiece on the Mississippi
JAMES (TIM) A. O'BRIEN, ESQ.
ASSISTANT CITY ATTORNEY
To: Mayor Roy D. Buol and
Members of the City Council
DATE: April 27, 2009
RE: The Office
Over the past several weeks we have engaged in discussions with one of the owners of
The Office. Those discussions have revolved around an agreement under which The
Office would close on or before July 1, 2009 and the property would be leased to
another party who would open anon-adult entertainment facility. As a result of the
discussions we have entered into a tentative Settlement Agreement, subject to City
Council approval under which The Office would close, the pending lawsuit by The Office
and related parties against the City of Dubuque would be dismissed and the principals
of The Office would agree not to open any adult entertainment establishment or similar
sexually oriented business in the City of Dubuque. In addition, the City and its
insurance carrier would each pay a settlement amount of $15,000 to The Office.
A copy of the proposed Settlement Agreement is attached hereto along with the
proposed Stipulation of Dismissal. We recommend that you approve this settlement
including the payment of the settlement amount to The Office. We recommend the
payment of this settlement amount despite our confidence that the City would prevail in
the litigation because the continuation of the litigation to conclusions would result in the
expenditure of a greater amount in attorneys fees, costs and staff time than the
settlement amount. The dismissal of the lawsuit with prejudice is also likely to have a
positive impact in terms of any future litigation which might be brought by another adult
entertainment establishment challenging the City ordinance.
JAO:tIs
Attachment
SETTLEMENT AGREEMENT
The City of Dubuque and its affiliated entities, elected officials, directors, officers,
employees, agents, and assigns (collectively "the City") and Dubuque Operating, LLC,
an Iowa limited liability company on behalf of itself, its heirs, executors, related entities,
successors, and assigns, as well as Dubuque Parking, LLC an Iowa limited liability
company on behalf of itself, its heirs, executors, related entities, successors, and
assigns, (as used herein, "The Office" applies to Dubuque Operating, LLC and Dubuque
Parking, LLC, both jointly and severally), hereby enter into this settlement agreement,
general release, and covenant not to sue (the "Agreement").
The parties agree as follows:
A. To enter the attached Stipulation of Dismissal, which is incorporated
herein by reference, in N.D. Iowa Case No. 08-1018 (the "Action"), with
each party to bear its own legal fees, costs, and expenses.
B. The Office agrees to fully and forever release, acquit, and discharge the
City, and its affiliated entities, elected officials, directors, officers,
employees, agents, trustees, and administrators, contractors, consultants,
and attorneys, whether past, present, or future, and all predecessors,
heirs, executors, successors, and assigns thereof, ("Released Parties")
from any and all liability whatsoever, including all claims, demands,
agreements, restraints, and causes of action of whatever kind, whether in
law, equity, or otherwise, and whether now known or unknown or which
have ever existed or now exist, whether the subject of The Office claims in
the Action or otherwise, relating to or arising out of The Office's operation
in Dubuque, Iowa.
C. The Office covenants not to sue or to institute or cause to be instituted any
kind of claim or action (except to enforce this Agreement) in any federal,
state, or local agency or court against any of the Released Parties related
to, arising out of, or attributable to The Office or the ordinances challenged
in the Action. The Office agrees to permanently close its Dubuque adult
entertainment business at 4292 Dodge Street on or before July 1, 2009
and not to open any other adult entertainment establishment or similar
sexually oriented business in the City of Dubuque.
D. In settlement of the disputed claim by The Office against the City, the City
agrees to pay The Office the sum of Thirty Thousand Dollars ($30,000.00)
within seven (7) days after The Office closes its business in Dubuque in
accordance with Paragraph C above.
E. The provisions of this Agreement shall be construed in accordance with
Iowa law.
F. The Office warrants and represents that it has neither made nor suffered
to be made any assignment or transfer of any right, claim, demand, or
cause of action covered by the above release or covenant not to sue and
that The Office is the sole and absolute owner of all thereof and that The
Office has not filed or suffered to be filed on its behalf any claim, action,
demand, or other matter of any kind covered by the above release or
covenant not to sue as of the date and time of the execution of this
Agreement other than that expressly noted herein.
G. This Agreement shall not be assigned by either party, and the Agreement
shall forever bind the City and The Office as well as their owners,
shareholders, partners, principals, officers, successors, and heirs.
H. In the event that any paragraph, subparagraph, or provision of this
Agreement shall be determined to be contrary to governing law or
otherwise unenforceable, all remaining portions of this Agreement shall be
enforced to the maximum extent permitted by law; the unenforceable
paragraph, subparagraph, or provision shall first be construed or
interpreted, if possible, to render it enforceable, and, if that is not possible,
then the provision shall be severed and disregarded, and the remainder of
this Agreement shall be enforced to the full extent permitted by law.
The Office acknowledges that its representative, Tim Baldwin, has read
this Agreement, that he has the ability to fully bind The Office, that he fully
understands and appreciates the meaning of this Agreement, that it fully
reflects the entirety of the agreement between the parties, that no
representation, inducement, or warranty has been made to The Office by
or on behalf of the City except as set forth herein, that he, acting on behalf
of The Office, has been advised to consult and has consulted competent
legal counsel of The Office selection with respect to this Agreement, and
that he, on behalf of The Office, KNOWINGLY and VOLUNTARILY enters
into this Agreement and agrees to comply with its terms and conditions.
Executed this day of May, 2009.
®UBUQUE OPER,4TIIVG, LLC
BY:
CI1°Y OF ®lJ QU, 101A/A
BY: ~ ~ .
®UBUQUE P,4RKIIVC, LLC
BY:
2
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
EASTERN DIVISION
DUBUQUE OPERATING, LLC, et al. ) CASE NO. 08-1018
Plaintiffs, )
STIPULATION FOR
v. ) DISMISSAL
CITY OF DUBUQUE, et al., )
Defendants. )
The parties stipulate that this cause be dismissed with prejudice with respect to
Plaintiffs Dubuque Operating, LLC and Dubuque Parking, LLC and without prejudice
with respect to Plaintiff Travis Cliburn. This stipulation entered pursuant to Rule
41(a)(1)(A)(ii).
JOHN O. MOELLER
601 BRADY STREET, SUITE 303
DAVENPORT, IOWA 52803
(563) 323-3014
(563) 323-9403
/s/
WILLIAM A. WICKETT
JASON W. MILLER
505 FIFTH AVENUE, STE. 729
DES MOINES, IA. 50309
(515)283-2147
J. MICHAEL HURRAY (Ohio Reg. 0019626)
STEVEN D. SHAFRON (Ohio Reg. 0039042)
BERKMAN, GORDON, HURRAY & DeVAN
55 PUBLIC SQUARE SUITE 2121
CLEVELAND, OHIO 44113-1949
(216) 781-5245
(216) 781-8207 (fax
Attorneys for Plaintiffs
CERTIFICATE OF SERVICE:
The undersigned certifies that the foregoing Stipulation for Dismissal was served upon all
counsel of record and pro se parties by electronic service by filing this document with the
Clerk of Court using the ECF system on the day of April 2009, which will send
notification to the following.
Dubuque Operating, LLC, et al v. City of Dubuque, et al
Page 2
William A. Wickett
Jason W. Miller
Counsel for Defendants
Patterson Law Firm
505 Fifth Avenue, Ste. 729
Des Moines, IA 50309
Scott D. Bergthold, PLLC
8052 Standifer Gap Rd. Suite C
Chattanooga TN 37421
/s/John O. Moeller