Plastic Ctr lawsuit Ice H agreeMEMORANDUM
May 28, 2003
TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Plastic Center Inc.
Corporation Counsel Barry Lindahl is recommending acceptance of a settlement with
Plastic Center, Inc. for their lawsuit against the city related to the design standards in
the Ice Harbor Urban Renewal District.
The key elements of the agreement are:
1. The triangular east parcel of their property at 5th Street and Adams Street will
become green space, waiting for redevelopment.
2. Plastic Center will remove the cyclone fence and buildings by October 31, 2003
from this triangular property.
3. Plastic Center will replace the existing sidewalk along the southerly boundary line
of the triangular property by September 30, 2004.
4. Plastic Center will also make improvements to the property on Adams Street
where the Varner building is located. These improvements will be made by
September 30, 2005.
To implement this agreement, I respectfully request Mayor and City Council approval of
a commitment to make no change in the current alignment of streets adjoining their
property that would materially diminish the size or use of their property. The Port of
Dubuque Master Plan had shown a realignment of Adams Street that would have
bisected this triangular piece of property. This realignment is not cdtical to the project.
MCVM/jh
Attachment
cc: Barry Lindahl, Corporation Counsel
Cindy Steinhauser, Assistant City Manager
Barry A. Lindahl, Esq.
Corporation Counsel
Suite 330, Harbor View Place
300 Maim Sheet
Dubuque, Iowa 520016944
(563) 583-413.3 office
(563) 583-I040 fax
balesq@mwci.net,
May 28, 2003
Mr. Michael C. Van Milligen, City Manager
City Hall - City Manager's Office
50 West 13th Street
Dubuque, IA 52001
RE: Plastic Center, Inc. vs. City of Dubuque (Design Standards Lawsuit)
Dear Mike:
The purpose of this letter is to advise you of a proposed settlement of the issues raised
by Plastic Center, Inc. in the lawsuit challenging the application of the Ice Harbor Urban
Renewal District Design Standards to the Company's property in the North Port.
Following the adoption of the Ice Harbor Renewal District Design Standards in March of
2002, Plastic Center, Inc. (PCI) filed a lawsuit challenging the application of the Design
Standards to PCI's property between East 4th Street and East 6th Street. Since that
time, you, Cindy, Pauline, Laura and I have had a number of meetings with Jim Pfohl
and Lynn Quigley, and their attorney, Brian Kane, to resolve the issues raised by the
lawsuit. Attached is a proposed Settlement Agreement which I believe successfully
does so.
Under the proposal, the east parcel of the property (the triangular piece) will ultimately
become green space. PCI will install a sidewalk in place of the existing sidewalk along
the southerly boundary line of the property by September 30, 2004. The cyclone fence
and buildings will be removed and grass planted on or before October 31, 2003, prior to
the anticipated opening of the Education and Conference Center.
With regard to the westerly parcel of the property, the Varner Building is currently
leased to Mississippi Valley Woodworking through May 31, 2004. PCI will replace the
existing sidewalk, remove the fence and plant grass on the westerly property by
September 30, 2005. PCI will also plant trees and provide appropriate street
furnishings, bike parking, and sidewalk lighting for the property by September 30, 2005,
unless development of the property occurs earlier, at which time those improvements
will also be provided.
The foregoing modifications of the application of the Design Standards to the PCI
property are within the authority of the City Manager to grant. PCI has also requested
that the City agree that no change in the current alignment of streets adjoining the
Service People In~grlty Responsibiiity Innovation Teamwork
property will materially diminish the size or use of the property. That condition requires
City Council approval.
Upon approval of the proposed agreement by the City Council, PCI will dismiss the
lawsuit with prejudice.
I believe the proposed Settlement Agreement is consistent with the discussions we
have had with representatives of PCI and its Counsel. I would recommend that the
proposed Settlement Agreement be submitted to the City Council for its consideration.
Barry A. Lindahl, Esq.
Corporation Counsel
BAL:tls
Enclosure
CC:Cindy Steinhauser, Assistant City Manager
Pauline Joyce, Administrative Services Manager
Laura Carstens, City Planner
Brian Kane, Esq.
Prepared by: Brian J. Kane, 2100 Asbury Road, Suite 2, Dubuque, IA 52001 (563) 582-7980
SETTLEMENT AGREEMENT
This Settlement Agreement ("Agreement") is made and entered into this day of
May, 2003, by and between PLASTIC CENTER, INC., a New York corporation, d/b/a THE
FISCHER COMPANIES ("PCI") and THE CITY OF DUBUQUE, IOWA, an Iowa municipal
corporation ("City").
A. PCI is the owner of certain real estate generally located at the intersection of 4th and
5th Streets in Dubuque, Iowa, and legally described as:
Lots 1, 2,3, 4, 5, 6, 7, 8, 12, 13, 14, 15, 16 and 17, in Industrial Subdivision #2, in
the City of Dubuque, Iowa, according to the recorded Plats thereof
Lot 2 of Lot 9 in Industrial Subdivision No. 2 in the City of Dubuque, Dubuque
County, Iowa,
(the "Real Estate"), which Real Estate is located within the Ice Harbor Renewal District area of
the City. PCI has used the Real Estate for many years in a light industrial fashion;
B. On March 4, 2002, the City council of the City of Dubuque, Iowa, adopted the Port of
Dubuque Master Plan which includes design standards for the Ice Harbor Renewal District (the
"Standards");
C. PCI has objected to the Standards and has filed suit in the Iowa District Court for
Dubuque County, Case No.: 01311 EQCV092948, generally challenging the applicability of the
Standards to the Real Estate via a writ of certiorari and declaratory judgment action (the
"Litigation");
D. The parties have reached an agreement with regard to the resolution of the Litigation
and the applicability of the Standards to the Real Estate and by this Agreement set out their
agreement in writing.
THEREFORE, for good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties agree upon the following mutual terms and conditions:
I. Applicability of Standards. The parties acknowledge that the Standards affect the Real
Estate in two respects. Part I of the Standards applies to "Built Form" Standards affecting
buildings and other structures and Part II of the Standards affects "Public Realm" areas or
improvements. PCI agrees to comply with the Built Form provisions of the Standards according
to the terms of the Standards. With respect to the Public Realm aspect of the Standards, the
parties agree to the following:
i. Sidewalks and Walkways
a. Pedestrian accessibility and continuity/continuous sidewalk minimum of 5 feet
wide along all public street frontage. City shall replace the sidewalk along that portion of the
northerly boundary of the Real Estate abutting Fifth Street (the City shall include the
replacement/reconstruction of such portion of the sidewalk wittdn its construction of other
amenities affecting the Fifth Street Parkway). PCI agrees to replace the existing sidewalk on the
balance of the Real Estate as follows: (i) That portion of the sidewalk on the Real Estate depicted
in yellow on Exhibit "A" attached hereto and by this reference made a part hereof shall be
constructed in accordance with the Standards by September 30, 2004, unless PCI (or its
successor in interest) sooner undertakes Development (defined below) of the Real Estate, or any
portion thereof. At, near or after September 30, 2004, PCI may, but is not required to, seek a
hardship exemption or appeal the applicability of the Standards under the procedures set out in
the Standards for such purpose, taking into account, among other things, circumstances existing
at that time with regard to the Real Estate, its Development and the status of development in the
entire Ice Harbor Renewal District (an "Appeal"); (ii) PCI agrees to replace the balance of the
remaining portion of the sidewalk on the Real Estate consistent with the standards by September
30, 2005. No other sidewalks will be constructed by PCI from and after March 4, 2002 (the
"Effective Date"), unless PCI (or its successor in interest) undertakes Development of the Real
Estate. Notwithstanding the foregoing, if PCI produces a development plan for the Real Estate
(possibly including other, adjoining real estate as well), such development plan, if approved
through the normal application process by the City, may necessitate deviation from the
foregoing. Further, PCI may, but is not required to, construct all of the sidewalks hereunder at
the same time; however, the sidewalks hereunder would not be constructed any later than
provided for herein. In other words, the sidewalks on the westerly portion of the Real Estate
may get constructed earlier than September 30, 2005. See Section VII below. PCI agrees to
remove the existing concrete on the westerly portion of the Real Estate between the Vamer
building and the existing sidewalk and plant grass at the same time the new sidewalk is
constructed as provided hereunder on the westerly portion of the Real Estate, but no later than
September 30, 2005.
b. Clearly defined and lighted walkway from parking area to all building entrances.
PCI shall not be required to comply with the foregoing unless and until PCI or its successor in
interest undertakes Development of the Real Estate. By August 31, 2003, PCI intends to
terminate all existing tenancies on the easterly portion of the Real Estate (the easterly portion of
the Real Estate is that portion east of Adams Street). By September 30, 2004, PCI shall remove
all buildings or other improvements (except for foundations or concrete bases or similar items)
from the easterly portion of the Real Estate and plant grass. The existing fencing will be
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removed by that time as well, such that the easterly portion of the Real Estate is green space on
and after September 30, 2004 (such work, not necessarily including the aforementioned
sidewalks, is intended to commence in 2003, depending on finalization of the City's location of
streets affecting the Real Estate, including, but not limited to, Fifth Street). See Section VII
below.
2. Sidewalk Landscaping.
Street trees required 30 to 40 feet apart. PCI shall not be required to comply with
the foregoing for a period through September 30, 2005, unless PCI or its
successor in interest sooner undertakes Development of the Real Estate, subject
to Appeal.
Requires use of CU structural soil, drip irrigation, etc. ("... latest, most advanced
horticultural techniques . . ."); PCI shall not be required to comply with the
foregoing unless PCI (or its successor in interest) commences Development of the
Real Estate, subject to Appeal.
If building fronts sidewalk requh'e planter pots, planter boxes or hanging planter
baskets. For the easterly portion of the Real Estate, PCI shall not be requh-ed to
comply with the foregoing unless and until PCI or its successor in interest
develops the Real Estate, subject to Appeal. As provided herein, the easterly
portion of the Real Estate shall remain green space until Development occurs.
With respect to the westerly portion of the Real Estate (the westerly portion of the
Real Estate defined as that portion of the Real Estate west of Adams Street upon
which the Vamer building exists), PCI shall not be required to comply with the
foregoing unless and until PCI or its successor in interest commences
Development of the Real Estate. PCI shall terminate the Lease of the existing
Tenant with regard to the Vamer building (Mississippi Valley Woodworking) by
no later than May 31, 2004.
Front yard area must be landscaped with trees, shrubs, ground cover amd tuff
grass. PCI shall not be required to comply with the foregoing unless and until PCI
or its successor in interest commences Development of the Real Estate.
3. Sidewalks on Parkways - Required to be Minimum of 8 Feet Wide with Colored
Concrete and scoring, etc. See Section I(1)(a) above.
4. Sidewalks on local streets ~ minimum of 5 feet wide, 4 inch thick concrete over 4
inch deep aggregate base, stiffbroom finish with steel trawled edge bands, etc. See Section
I(1)(a) above.
5. Walkways. Walkways on private property shall be a minimum of 4 feet wide and
constructed of either colored concrete or brick pavers. Bituminous walkways prohibited. This
provision shall not apply to the Real Estate until PCI (or its successor in interes0 commences
Development of the Real Estate. The Real Estate shall essentially be green space as provided
above, until Development, subject to Appeal.
6. Accessibility and Curb Ramps. Ail sidewalls and walkways must meet ADA
standards. Curb ramps must use colored concrete scored in 1 foot grid pattern and textured, etc.
See Section I(1)(a) above.
7. Street Scape Fumishlngs. Along streets, parking areas, parks and plazas there
must be placed benches, litter receptacles, bike racks, directory kiosks and light fixtures, etc.
This provision shall not apply to the Real Estate until PCI (or its successor in interest)
commences Development on the Real Estate. Notwithstanding the foregoing, this Standard shall
apply to the Real Estate on and after September 30, 2005, subject to Appeal. This provision
does not apply to the Real Estate because such amenities shall not exist on the Real Estate until
Development prior to September 30, 2005.
8. Bike Parking. Bike loops for parking at least 3 bicycles must be provided within
20 feet of the main entry of any commercial, mixed use or public building. This provision shall
not apply to the Real Estate until PCI (or its successor in interest) commences Development on
the Real Estate. Notwithstanding the foregoing, this Standard shall apply to the Real Estate on
and after September 30, 2005, subject to Appeal. This provision does not apply to the Real
Estate because such amenities shall not exist on the Real Estate until Development prior to
September 30, 2005.
9. Sidewalk Lighting. Public and private walkways and sidewalks must be
illuminated with pedestrian scale light fixtures (12 feet tall). Fixtures must include metal halide
lamps and provide evenly distributive light levels of approximately 1 foot candle. This
provision shall not apply to the Real Estate until PCI (or its successor in interest) commences
Development on the Real Estate. Notwithstanding the foregoing, this Standard shall apply to the
Real Estate on and after September 30, 2005, subject to Appeal. This provision does not apply
to the Real Estate because such amenities shall not exist on the Real Estate until Development
prior to September 30, 2005.
10. Parking Lot Lighting. This provision (in its entirety) shall not apply to the Real
Estate until the Real Estate is developed by PCI or its successor in interest, subject to Appeal.
The easterly portion of the Real Estate shall remain green space until Development commences.
The westerly portion of the Real Estate shall become green space except for the Vamer building
which shall be vacated by the present Tenant as stated above. It is not contemplated that there
will be any parking lots until Development. This provision shall not apply to the Real Estate
until the Real Estate is developed because there will be no parking lot on the Real Estate until
Development occurs.
11. Parking Lot Landscaping. This provision (in its entirety) shall not apply to the
Real Estate until the Real Estate is developed by PCI or its successor in interest, subject to
Appeal. See Section 10 above. This provision shall not apply to the Real Estate until the Real
Estate is developed because there will be no parking lot on the Real Estate until Development
OCCURS.
12. Surface Parking. This provision (in its entirety) shall not apply to the Real
Estate until the Real Estate is developed by PCI or its successor in interest, subject to Appeal.
See 10 above. Further, the City agrees with the existing Tenant that the westerly portion of the
Real Estate (Mississippi Valley Woodworking) may continue to park on the City's property
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immediately to the north of the westerly portion of the Real Estate and may use four (4) parking
spaces on such property adjacent to the railroad tracks on the westerly boundary line thereof.
Further, the existing Tenant may continue to park his white trailer outside of the Vamer building
on the westerly side o£ the Real Estate wbere it has been presently parked. This provision shall
not apply to the Real Estate until the Real Estate is developed because there will be no parking
lot on the Real Estate until Development occurs.
13. Refuse. This provision (in its entirety) shall not apply to the Real Estate until the
Real Estate is developed by PCI or its successor in interest, subject to Appeal. This provision
shall not apply to the Real Estate because there shall be no refuse on the Real Estate (except for
Mississippi Valley Woodworking and Winger Construction) until Development occurs.
14. Vending Machines.
No outdoor vending machines. PCI agrees to this Standard as of the Effective
Date.
15. Outdoor Storage.
a. All outdoor storage prohibited (including vehicles, raw materials, etc.). The easterly
portion of the Real Estate shall become green space as provided herein. PCI agrees to this
standard as of September 30, 2004. The intent of this Agreement is for the Real Estate to
become green space at the times as provided herein.
16. Outdoor Audio. Outdoor audio is discouraged and sound must be contained
within site boundaries. PCI agrees to this Standard as of the Effective Date.
17. Fences and Screen Walls. This provision (in its entirety) shall not apply to the
Real Estate until the Real Estate is developed by PCI or its successor in interest, subject to
Appeal. PCI shall remove all existing fencing on the Real Estate as follows:
(i) The existing fencing on the easterly portion of the Real Estate shall be removed by
September 30, 2004;
(ii) The existing fencing on the westerly portion of the Real Estate shall be removed by
September 30, 2005.
This provision shall not' apply to the Real Estate because there shall be no fencing and screened
walls on the Real Estate until Development (except for that fencing to be removed in a timely
fashion as above-described).
18. Signs. Except as specifically provided below, PCI agrees with this Standard as of
the Effective Date except that the City agrees that PCI or its existing tenant on the westerly
portion of the Real Estate may retain existing sign(s) for a period not to exceed May 31, 2004.
Signs must be architecturally compatible with style of building and be part of
building and site design; This provision shall not apply to the Real Estate until
the Real Estate is developed by PCI or its successor in interest, subject to Appeal.
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It is not intended that there would be any signs on the Real Estate until it is
developed (except as temporarily provided above).
b. Signs for one location should be compatible with each other; This provision shall
not apply to the Real Estate until the Real Estate is developed by PCI or its
successor in interest, subject to Appeal. It is not intended that there would be any
signs on the Real Estate until it is developed (except as provided above).
c. Signs must be located on a "sign band" on the building; This provision shall not
apply to the Real Estate until the Real Estate is developed by PCI or its successor
in interest, subject to Appeal. It is not intended that there would be any signs on
the Real Estate until it is developed (except as provided above).
d. Sign materials must be compatible with the construction materials and
architectural style of building; This provision shall not apply to the Real Estate
until the Real Estate is developed by PCI or its successor in interest, subject to
Appeal. It is not intended that there would be any signs on the Real Estate until it
is developed (except as provided above).
e. The following signs are prohibited: PCI agrees to this Standard as of the
Effective Date.
Pole or pylon signs
Billboards
Internally illuminated awnings
Flashing and rotating signs
Portable signs
Search lights
Audible or musical signs
Roof signs
f. Limitations on size, window coverage, etc. PCI agrees to this Standard as of the
Effective Date.
II. Dismissal of Litigation. In consideration of this Agreement, PCI shall dismiss the
Litigation with prejudice once this Agreement is approved by the City Council and the Board of
Directors of PCI.
1II. Miscellaneous. This Agreement shall be binding upon the parties hereto and their
respective successors in interest and assigns. This Agreement constitutes the entire agreement of
the parties with regard to the subject matter hereof and shall not be amended except by an
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instrument in writing signed by ail of the parties hereto. This Agreement shail be governed by
and construed in accordance with the laws of the State of Iowa. This Agreement shail not, in any
respect, restrict or impak the ability of PCI to improve, develop, sell or convey the Reai Estate,
subject to the terms and conditions hereof.
IV. Appeai. PCI may avail itself of the Appeal process set out in the Standards at any
time from and after the Effective Date (i.e. March 4, 2002) without any prejudice because of this
Agreement with regard to any or all matters herein or contained in the Standards (including
"Built Form" and "Public Realm").
V. Development. Development (or "develops" or "improved") for purposes of this
Agreement shall mean improving the Reai Estate:
(i) consistent with the existing PUD district with a planned commercial
designation, or,
(ii) any improvement or construction upon the Real Estate, at which time all of
the Standards shall apply to that portion of the Reai Estate being developed,
subject to Appeal.
VI. Street Location. In connection with the Development referred to in Section (I)(1)(a)
above, and as a condition of making the improvements hereunder, City agrees that no such
adjoining street(s) will materially diminish the size and/or use of the Reai Estate.
VII. Easterly Portion of Real Estate. Notwithstanding any other provision herein to the
contrary, PCI shall, at its expense, on or before October 31, 2003, remove the fence and
building(s) (not including concrete pads or below grade fonndations) on the easterly part of the
Real Estate and plant grass thereon.
IN WITNESS WHEREOF, the parties have signed this Agreement the date and year first
above written.
PLASTIC CENTER, INC., A New York
Corporation ("PCI")
By_
STATE OF )
) SS:
COUNTY OF )
James M. Pfohi, Its President
On this __ day of ,2003, before me, the tmdersigned, a Notary
Public in and for the State of , personally appeared James M. Pfohi, to me
personally known, who being by me duly sworn, did say that he is the President of the
corporation execut'mg the within and foregoing Instrument; that said instrument was signed on
behalf of the corporation by authority of its Board of Directors; and that James M. Pfohl as an
7
officer acknowledged the execution of the foregoing instrument to be the voluntary act and deed
of the corporation, by it and by him voluntarily executed.
Notary Public in and for the State of
THE CITY OF DUBUQUE, IOWA, An Iowa
Municipal Corporation ("City")
By
STATE OF IOWA )
) SS~
COUNTY OF DUBUQUE )
On this day of ,2003, before me, the undersigned, a Notary
Public in and for the State of Iowa, personally appeared to me
personally known, who being by me duly sworn, did say that he/she is
of the City of Dubuque, Iowa, the municipal corporation executing
the within and foregoing instrument; that the instrument was signed on behalf of the corporation
by authority of its City Council and that acknowledged the
execution of the foregoing instrument to be the voluntary act and deed of the corporation, by it
and by him/her voluntarily executed.
Notary Public in and for the State of Iowa
a~W~OCS~O~AU~OCSV~ Co~*~,s S~,~ (OW ~).wdDATE \~ "MMMM d, yyyy"
EXHIBIT "A"
See attached drawing.
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PLASTIC CENTER INC
PLASTIC CENTER INC
PLASTIC CENTER INC
PLASTIC CENTER INC
Notice - These maps a re compiled for assessment and tax information purposes from offfdal county records. Ail map infon"na tio~ shown is for L'qe fDrgoing purpose and does not represent a survey of land,