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Metz et al. vs. City of DubuqueTHE CITY OF DUBIJE MEMORANDUM Masterpiece on the Mis issippi BARRY LIND HL CITY ATTOR EY To: Members of the City Council DATE: October 5, 2011 RE: Mayor Roy D. Buol and Metz et al. vs. City of Dubuque Three property owners in Harvest View Estates Addition sued the City of Dubuque for water damage related to the overflow of a City owned detention basin. The damage occurred during a July 2010 major rain event. The City brought the engineering firm of WHKS into the lawsuit asking for contribution for the Plaintiffs' damages. WHKS designed the detention basin. The case has been handled by Attorney Les Reddick, Esq. on behalf of the Iowa Communities Assurance Pool. A settlement has been reached among the parties. The three property owners will be paid a total of $15,157.00. WHKS will contribute $6,828.50 to the settlement. The City will pay the balance of $8,328.50. Les Reddick has forwarded to me a Release and Settlement Agreement which will release WHKS from any further claims in connection with the design of the detention basin. We have reviewed the Release and Settlement Agreement with City Engineer Gus Psihoyos. We believe the likelihood of any further damage claims against the City related to the design of the detention basin is remote since the detention basin has been redesigned by the City. Les Reddick is requesting City Council approval of the attached Release and Settlement Agreement and authority for the City Manager to sign on behalf of the City. I concur with Les' recommendation and respectfully request City Council approval. BAL:tls Attachment 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 Release and Settlement Agreement The parties to the Release and Settlement Agreement are Thomas Metz, Mary Kay Metz, James LaBee, Bonita LaBee, James Kolf, and Molly Kolf (collectively, "Plaintiffs "), WHKS & Co. ( "WHKS "), and the City of Dubuque, and, collectively referred to as the Parties and singularly referred to as the Party. WHEREAS, WHKS performed services for Harvest Development Group, LLC for the Harvest View Estates Additions in Dubuque, Iowa. WHEREAS, in 2010, the Plaintiffs experienced flooding during a severe rainfall event and alleged the maintenance of the detention pond caused flood waters to enter their homes. WHEREAS, the Plaintiffs filed a lawsuit against the City of Dubuque in the Iowa District Court in and for Dubuque County, specifically, case no. LACV056863 ( "Lawsuit "). WHEREAS, in the same Lawsuit, the City of Dubuque filed a third -party claim against WHKS seeking contribution and indemnity. WHEREAS, both the City of Dubuque and WHKS denied liability and defended the Lawsuit. WHEREAS, in lieu of resolving the Lawsuit in a court of law, the Plaintiffs, the City of Dubuque, and WHKS have reached a compromise settlement. THEREFORE, in consideration of the mutual covenants, promises, and obligations set forth herein, and for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereby agree to be legally bound as follows: 1. The City of Dubuque and Plaintiffs entered into separate Full and Final Releases of All Claims. 2. WHKS shall tender a check in the amount of six thousand eight hundred twenty eight dollars and fifty cents ($6,828.50) to the Kane, Norby, & Reddick, PC Trust Account. 3. In full, complete, and final settlement of any and all past, present, and future claims related to WHKS's services performed for the detention basin at the Harvest View Estates Addition or Plaintiffs' homes, the Plaintiffs for themselves and their successors and assigns absolutely, irrevocably, and unconditionally release, acquit, and forever discharge WHKS, its predecessors and successors in interest, insurers, sureties, directors, officers, shareholders, employees, agents, attorneys, representatives, affiliates, heirs, and assigns (collectively, the "Released Parties "), from any and all manner of actions, suits, claims, damages, demands, judgments, levies, executions, costs, expenses, and liabilities, liquidated or unliquidated, fixed or contingent, direct or indirect, known or unknown, now existent or contingent, whether in contract, tort, or otherwise, and whether existing by virtue of any 1 Release and Settlement Agreement The parties to the Release and Settlement Agreement are Thomas Metz, Mary Kay Metz, James LaBee, Bonita LaBee, James Kolf, and Molly Kolf (collectively, "Plaintiffs "), WHKS & Co. ( "WHKS "), and the City of Dubuque, and, collectively referred to as the Parties and singularly referred to as the Party. WHEREAS, WHKS performed services for Harvest Development Group, LLC for the Harvest View Estates Additions in Dubuque, Iowa. WHEREAS, in 2010, the Plaintiffs experienced flooding during a severe rainfall event and alleged the maintenance of the detention pond caused flood waters to enter their homes. WHEREAS, the Plaintiffs filed a lawsuit against the City of Dubuque in the Iowa District Court in and for Dubuque County, specifically, case no. LACV056863 ( "Lawsuit "). WHEREAS, in the same Lawsuit, the City of Dubuque filed a third -party claim against WHKS seeking contribution and indemnity. WHEREAS, both the City of Dubuque and WHKS denied liability and defended the Lawsuit. WHEREAS, in lieu of resolving the Lawsuit in a court of law, the Plaintiffs, the City of Dubuque, and WHKS have reached a compromise settlement. THEREFORE, in consideration of the mutual covenants, promises, and obligations set forth herein, and for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereby agree to be legally bound as follows: 1. The City of Dubuque and Plaintiffs entered into separate Full and Final Releases of All Claims. 2. WHKS shall tender a check in the amount of six thousand eight hundred twenty eight dollars and fifty cents ($6,828.50) to the Kane, Norby, & Reddick, PC Trust Account. 3. In full, complete, and final settlement of any and all past, present, and future claims related to WHKS's services performed for the detention basin at the Harvest View Estates Addition or Plaintiffs' homes, the Plaintiffs for themselves and their successors and assigns absolutely, irrevocably, and unconditionally release, acquit, and forever discharge WHKS, its predecessors and successors in interest, insurers, sureties, directors, officers, shareholders, employees, agents, attorneys, representatives, affiliates, heirs, and assigns (collectively, the "Released Parties "), from any and all manner of actions, suits, claims, damages, demands, judgments, levies, executions, costs, expenses, and liabilities, liquidated or unliquidated, fixed or contingent, direct or indirect, known or unknown, now existent or contingent, whether in contract, tort, or otherwise, and whether existing by virtue of any 1 federal, state, or local statute or regulation, arising out of any claims that Plaintiffs ever had, could assert, or could in the future assert against the Released Parties related to or arising out of WHKS's services related to the detention basin at the Harvest View Estates Addition or Plaintiffs' homes, including without limitation any and all claims arising out of the occurrence that was the basis of the claims by the Plaintiffs in the Lawsuit. 4. The Plaintiffs shall disclose the facts alleged in the petition filed in the Lawsuit on any Residential Property Seller Disclosure Statement. The Plaintiffs shall put any assignee or successor -in- interest on notice of the terms of this Release and Settlement Agreement. 5. In full, complete, and final settlement of any and all past, present, and future claims related to WHKS's services performed for the detention basin at the Harvest View Estates Addition or Plaintiffs' homes, the City of Dubuque absolutely, irrevocably, and unconditionally releases, acquits, and forever discharges Released Parties from any and all manner of actions, suits, claims, damages, demands, judgments, levies, executions, costs, expenses, and liabilities, liquidated or unliquidated, fixed or contingent, direct or indirect, known or unknown, now existent or contingent, whether in contract, tort, or otherwise, and whether existing by virtue of any federal, state, or local statute or regulation, arising out of any claims that the City of Dubuque ever had, could assert, or could in the future assert against the Released Parties related to or arising out of WHKS's services related to the detention basin at the Harvest View Estates Addition or Plaintiffs' homes, including without limitation any and all claims arising out of the occurrence that was the basis of the claims by the Plaintiffs in the Lawsuit. 6. The City of Dubuque agrees to execute through their counsel of record a stipulation of dismissal with prejudice of the Lawsuit against WHKS. 7. Each party agrees to pay their own court costs incurred, deposition fees, attorney fees, expert fees, and other costs associated with the litigation. 8. This Agreement represents the entire and integrated agreement between the Parties and supersedes negotiations, representations, or agreements, either written or oral. This Agreement may only be amended in writing signed by all Parties or their respective agents. 9. The Parties have had the opportunity to review this Agreement with their respective counsel and fully understand its terms. Each party agrees to bear its own attorney's fees, expenses and costs related to the preparation, review and execution of this Agreement. 10. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, all of which shall constitute one and the same instrument, and shall become effective when each party has delivered to the other, this Agreement duly executed by all Parties. 2 11. The person signing on behalf of each and every Party represents and warrants that he /she has full authority to sign on behalf of the Party, and to bind the Party and any assignees or transferees of the Party to this Agreement. 12. The undersigned, by execution hereof, state that they have read this Agreement, and that it has been reviewed by their legal counsel, and that they understand and fully agree to each and every provision hereof, and that they each acknowledge a receipt of a copy hereof. It is further understood and agreed that the Plaintiffs have each read this Release and Settlement Agreement and understand its terms, and freely and voluntarily sign this Agreement. This document must be executed before a Notary Public and include the attached Notary Acknowledgement. 3 Date: October 18, 2011 STATE OF Iowa COUNTY OF Dubuque On 10 /18/11, before me, Kevin S. Firnstahl; DATE NAME, TITLE OF OFFICER -E.G. JANE DOE, NOTARY PUBLIC Personally appeared M i c a e l Van M 111 -1 g e n i personally known to me —OR -D proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the within instrument and acknowledged to me that he /she /they executed the same in his /her /their authorized capacity(ies), and that by his /her /their signature(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS m d and official seal, Signature of Notary KEVIN S. FIRNSTAHL COMMISSION NO.745295 MY COMA ISSION EXPIRES 4 The City of ubuque By: Its: City Manager CAPACITY CLAIMED BY SIGNER ❑ INDIVIDUAL ❑ CORPORATE OFFICER(S) City Manager TITLE(S) ❑ PARTNER(S) ❑ LIMITED ❑ GENERAL ❑ ATTORNEY -IN -FACT ❑ TRUSTEE(S) ❑ OTHER: Date: WHKS & CO. STATE OF COUNTY OF On DATE before me, NAME, TITLE OF OFFICER -E.G. JANE DOE, NOTARY PUBLIC Personally appeared ❑ personally known to me—OR-0 proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the within instrument and acknowledged to me that he /she /they executed the same in his /her /their authorized capacity(ies), and that by his /her /their signature(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal, Signature of Notary 5 CAPACITY CLAIMED BY SIGNER ❑ INDIVIDUAL ❑ CORPORATE OFFICER(S) TITLE(S) ❑ PARTNER(S) ❑ LIMITED ❑ GENERAL ❑ ATTORNEY -IN -FACT ❑ TRUSTEE(S) ❑ OTHER: Date: Thomas Metz STATE OF COUNTY OF On DATE before me, NAME, TITLE OF OFFICER -E.G. JANE DOE, NOTARY PUBLIC Personally appeared ❑ personally known to me—OR-0 proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the within instrument and acknowledged to me that he /she /they executed the same in his /her /their authorized capacity(ies), and that by his /her /their signature(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal, CAPACITY CLAIMED BY SIGNER ❑ INDIVIDUAL ❑ CORPORATE OFFICER(S) TITLE(S) ❑ PARTNER(S) ❑ LIMITED ❑ GENERAL ❑ ATTORNEY -IN -FACT ❑ TRUSTEE(S) ❑ OTHER: Signature of Notary Date: Mary Kay Metz STATE OF COUNTY OF On DATE before me, NAME, TITLE OF OFFICER -E.G. JANE DOE, NOTARY PUBLIC Personally appeared ❑ personally known to me—OR-0 proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the within instrument and acknowledged to me that he /she /they executed the same in his /her /their authorized capacity(ies), and that by his /her /their signature(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal, Signature of Notary 6 CAPACrTY CLAIMED BY SIGNER ❑ INDIVIDUAL ❑ CORPORATE OFFICER(S) TITLE(S) ❑ PARTNER(S) ❑ LIMITED ❑ GENERAL ❑ ATTORNEY -IN -FACT ❑ TRUSTEE(S) ❑ OTHER: Date: James LaBee STATE OF COUNTY OF On DATE before me, NAME, TITLE OF OFFICER -E.G. JANE DOE, NOTARY FUBLIC Personally appeared ❑ personally known to me—OR-0 proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the within instrument and acknowledged to me that he /she /they executed the same in his /her /their authorized capacity(ies), and that by his /her /their signature(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal, CAPACITY CLAIMED BY SIGNER ❑ INDIVIDUAL ❑ CORPORATE OFFICER(S) TITLE(S) ❑ PARTNER(S) ❑ LIMITED ❑ GENERAL ❑ ATTORNEY -IN -FACT ❑ TRUSTEE(S) ❑ OTHER: Signature of Notary Date: Bonita LaBee STATE OF COUNTY OF On DATE before me, NAME, TITLE OF OFFICER -E.G. JANE DOE, NOTARY PUBLIC Personally appeared ❑ personally known to me—OR-0 proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the within instrument and acknowledged to me that he /she /they executed the same in his /her /their authorized capacity(ies), and that by his /her /their signature(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal, Signature of Notary CAPACITY CLAIMED BY SIGNER ❑ INDIVIDUAL ❑ CORPORATE OFFICER(S) TITLE(S) ❑ PARTNER(S) ❑ LIMITED ❑ GENERAL ❑ ATTORNEY -IN -FACT ❑ TRUSTEE(S) ❑ OTHER: Date: James Kolf STATE OF COUNTY OF On DATE before me, NAME, TITLE OF OFFICER -E.G. JANE DOE, NOTARY PUBLIC Personally appeared ❑ personally known to me—OR-0 proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the within instrument and acknowledged to me that he /she /they executed the same in his /her /their authorized capacity(ies), and that by his /her /their signature(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal, CAPACITY CLAIMED BY SIGNER ❑ INDIVIDUAL ❑ CORPORATE OFFICER(S) TITLE(S) ❑ PARTNER(S) ❑ LIMITED ❑ GENERAL ❑ ATTORNEY -IN -FACT ❑ TRUSTEE(S) ❑ OTHER: Signature of Notary Date: Molly Kolf STATE OF COUNTY OF On DATE before me, NAME, TITLE OF OFFICER -E.G. JANE DOE, NOTARY PUBLIC Personally appeared ❑ personally known to me—OR-0 proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the within instrument and acknowledged to me that he /she /they executed the same in his /her /their authorized capacity(ies), and that by his /her /their signature(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal, Signature of Notary 8 CAPACITY CLAIMED BY SIGNER ❑ INDIVIDUAL ❑ CORPORATE OFFICER(S) TITLE(S) ❑ PARTNER(S) ❑ LIMITED ❑ GENERAL ❑ ATTORNEY -IN -FACT ❑ TRUSTEE(S) ❑ OTHER: