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Clemons et al. vs. City of Dubuque and Brian WullweberTHE CITY OF DUB E MEMORANDUM Masterpiece on the Mississippi BARRY LINDAHL CITY ATTORNEY To: Mayor Roy D. Buol and Members of the City Council DATE: September 27, 2012 RE: Clemons et al. v. City of Dubuque and Brian Wullweber This lawsuit was filed in federal court by Antoine Clemons in 2010 alleging the City and the Police Department improperly used the K9 Unit in effecting an arrest of Clemons. Phillip Robinson and Michael Cooper joined the lawsuit with similar claims. The City denied all of the claims. Attorney Les Reddick, Esq. has been representing the City on behalf of the City's insurer, the Iowa Communities Assurance Pool (ICAP). The parties have been involved in extensive discovery proceedings. Clemons was dismissed from the lawsuit but that dismissal has been appealed. Trial was set to begin October 15, 2012 before a federal jury. Mr. Reddick recently received an offer from the plaintiffs' attorney to settle the case. After negotiating the amount of the settlement, the plaintiffs agreed to accept $150,000. ICAP has concluded the settlement amount is reasonable and intends to settle the case. ICAP has the authority to settle the case without the City Council's consent or approval. The City Council can exercise its right to object to the settlements, however, under the City's ICAP contract, if ICAP concludes that a settlement is reasonable, and the City objects to the settlement and the case goes to trial, the City would be responsible for any judgment in excess of the settlement amount and any attorneys fees incurred by ICAP after the settlement opportunity. Although it is our conclusion that the risk of an adverse judgment is low, a judgment in excess of the settlement amount is possible. In the event of an adverse judgment, the City would also be responsible for the plaintiffs' attorneys fees which in civil rights cases are typically substantial. The settlement, which covers all three (3) plaintiffs, resolves the matter for a total of $150,000 which will be paid by ICAP less the City's deductible. The deductible would be paid by the City regardless of whether the case is settled or tried. The City's deductible at the time of the claims was$10,000 for each of the 3 claims. The first claim was in Fiscal Year 2009 (FY09). As the City met its maximum annual payout for claims in FY09 the City will not be responsible for the deductible amount of $10,000 for claim one. The second and third claims occurred in Fiscal Year 2010 (FY10). These claims 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 balesci cityofdubuque.orq will put the City over the maximum annual payout for claims in FY10. This means that for the second claim the City will pay $10,000 and for the third claim the City will not be responsible for the full deductible of $10,000. The City's payout for the second and third claims will total $17,876.23. The City's payout following ICAP settlement of the claims will be $17,876.23 which comes from the Legal Services — Damage Claims Budget. Attached are the releases which will be signed by the plaintiffs. As you can see in the ICAP releases there is language which includes the following: 1. The releases are global. The plaintiffs are releasing any claims they have up to the date of the release. 2. The language specifically requires the plaintiffs to acknowledge there was insufficient evidence to proceed with the discrimination claim alleged in the law suit. 3. The release specifically requires the plaintiffs to acknowledge that the City not only denies fault and liability, but that the payment is being made solely to preclude further litigation costs. I respectfully ask the Mayor and City Council to defer to ICAP's assessment of the case and refrain from objecting to the settlements. cc: Michael C. Van Milligen, City Manager Crenna M. Brumwell, Assistant City Attorney Cindy Steinhauser, Assistant City Manager Mark Dalsing, Chief of Police Les Reddick, Esq. 2 FULL AND FINAL RELEASE OF ALL CLAIMS The undersigned, PHILLIP ROBINSON, individually, and on behalf of his heirs, executors, administrators, successors, assigns, subrogees, personal representatives, attorneys, and anyone claiming by or through them (collectively referred herein to as the "Releasor "), for and in consideration of the payment of the sum of Fifty Thousand Dollars ($50,000.00), the receipt and sufficiency of which is hereby acknowledged, does hereby irrevocably and unconditionally waive, release, acquit, and forever discharge the CITY OF DUBUQUE (including its elected and appointed officials in their individual and official capacities), BRIAN WULLWEBER, individually and in his official capacity, the Iowa Communities Assurance Pool, American Risk Pooling Consultants, Inc., Public Entity Risk Services of Iowa, LLC, and York Risk Pooling Consultants, Inc., together with their employees, volunteers, employers, principals, agents, insurers, attorneys, officers, directors, predecessors, subsidiaries, affiliates, successors and assigns (collectively referred to herein as the "Releasees "), of and from any and all liability, claims, demands, charges, complaints, controversies, actions, causes of action, and suits at law or in equity, of any kind or nature whatsoever, known or unknown, asserted or unasserted, suspected or unsuspected, including without limitation any claim which was or could have been raised by Releasor in a court of law or any other forum, and any claim under any local, state or federal statute, and any claim under any other statutory, administrative, constitutional, contractual, tort, common law or other legal or equitable theory whatsoever, which Releasor at any time heretofore had or claimed to have had or which Releasor may have or claim to have regarding any matter as of the date of this Full and Final Release of all Claims ( "Release "), including without limitation, any and all claims related or in any manner incidental to the complaint filed in the United States District for the Northern District of Iowa as Case No. C10 -1032, (hereinafter collectively referred to as "claim" or "claims "). This Release by Releasor includes the complete and total satisfaction of any claim Releasor may have had against Releasees including without limitation claims for personal injuries, emotional distress, medical expenses, wage loss, lost benefits, loss of income, loss of services, loss of consortium, loss of property, damage to property, mental anguish, prejudgment interest, post - settlement interest, general damages, liquidated damages, exemplary damages, compensatory damages, punitive damages, infringement of civil /constitutional rights, unreasonable search, arrest without probable cause, false arrest, false imprisomnent, assault and battery, unlawful arrest, malicious prosecution, use of excessive force, failure to properly investigate, failure to train, acquiescence in unconstitutional conduct, maintenance of an unconstitutional custom, policy or practice, failure to discipline, and expenses including but not limited to attorney fees and costs, together with any and all other loss, damage, and claim of every kind, nature, and description, resulting from or hereinafter resulting from the acts and omissions of the Releasees. As further consideration for the payment of the aforesaid suin, Releasor shall immediately dismiss the Complaint filed in the United States District for the Northern District of Iowa, Case No. C10 -1032 with prejudice. Releasor acknowledges that there was insufficient evidence to pursue any racial discrimination claim as alleged in C10 -1032. Releasor shall pay at his sole cost and expense all bills and expenses incurred by Releasor as a result of the claims and Releasees shall have no Page 1 of 3 liability for same. Releasor further agrees to reimburse any person, insurance company, or other entity that has paid, on behalf of the Releasor, any bills or expenses incurred in connection with the claims and Releasees shall have no liability for same. Releasor does hereby agree to indemnify, defend and hold the Releasees harmless from and against any and all liability, claims, demands, actions, causes of action and suits at law or in equity, for injuries, expenses, and damages known or unknown, made against or sustained by the Releasees, as a result of any amounts sought, claimed, or recovered by any insurer, person, governmental agency or other entity subrogated to the rights of Releasor, against the Releasees, or by any hospital, physician, medical provider or provider of services of whatever kind which provided medical, hospital, or services of any kind to the Releasor. Such indemnification shall include without limitation any and all attorney fees, court costs and any and all other costs and expenses. Releasor does hereby agree to indemnify, defend and hold Releasees harmless from and against any and all liability, claims, demands, actions, causes of action and suits at law or in equity, for injuries, expenses, and damages known or unknown, made against or sustained by Releasees as a result of any amounts sought, claimed, or recovered by any person who may now have or may assert in the future a claim for loss of any services or consortium as a result of the occurrence identified above. Such indemnification shall include without limitation any and all attorney fees, court costs and any and all other costs and expenses. Releasor acknowledges that the Releasees deny liability and responsibility for any and all claims, and Releasor further acknowledges that the payment of the foregoing sum shall not be construed as an admission of liability and is solely paid to preclude any additional litigation expenses. Releasor represents and warrants that he has not assigned all or any portion of the rights, titles, and /or interests in or with respect to the matters released hereunder, and that no trustee in bankruptcy or assignee for the benefit of creditors has any right to the Releasor's claims hereby released. Releasor also agree that the Releasees may use this Release against Releasor, Releasor's successors, or any other person, in court or elsewhere, to show that no person is entitled to any additional consideration should they ever attempt to assert any other claim for any reason whatsoever against the Releasees as a result of the occurrence. Releasor further agrees that he will be responsible for payment of any and all taxes, if any, including but not limited to federal, state, and local taxes, as a result of the payment and receipt of the foregoing sum. Releasor further acknowledges that he fully understands the terms of the settlement and that he voluntarily accepts said sum for the purpose of making full and final compromise, adjustment, and settlement of any losses and damages. Releasor agrees that this Release shall in all respects be interpreted, enforced, and governed by the laws of Iowa. The language of all parts of this Release shall in all cases be construed as a whole, according to its fair meaning. If, after the date hereof, any provision of this Release is held to be illegal, invalid or unenforceable under present or future laws effective during the term of this Release, such provision shall be fully severable. In lieu thereof, there shall be added a provision as similar in terms to such illegal, invalid or unenforceable provision as may be possible, and be legal, valid and enforceable. Page 2 of 3 This Release may be executed in multiple counterparts, and all counterparts executed by the parties, whether or not such counterparts shall bear the execution of each of the parties, shall be deemed to be, and shall be construed as one in the same agreement. THE UNDERSIGNED HAS READ THE FOREGOING FULL AND FINAL RELEASE OF ALL CLAIMS AND FULLY UNDERSTANDS IT. RELEASOR: PHILLIP ROBINSON COUNTY OF SS: STATE OF Iowa Sworn to before me and subscribed by the said PHILLIP ROBINSON, who signed the foregoing Release and acknowledged to me that it was voluntarily signed this day of , 2012. S: \WPdo cs\BRENDA\LV R\PERSRobinson.Release.wpd Notary Public Page 3 of 3 FULL AND FINAL RELEASE OF ALL CLAIMS The undersigned, MICHAEL COOPER, individually, and on behalf of his heirs, executors, administrators, successors, assigns, subrogees, personal representatives, attorneys, and anyone claiming by or through them (collectively referred herein to as the "Releasor "), for and in consideration of the payment of the sum of Fifty Thousand Dollars ($50,000.00), the receipt and sufficiency of which is hereby acknowledged, does hereby irrevocably and unconditionally waive, release, acquit, and forever discharge the CITY OF DUBUQUE (including its elected and appointed officials in their individual and official capacities), BRIAN WULLWEBER, individually and in his official capacity, the Iowa Cornrnunities Assurance Pool, American Risk Pooling Consultants, Inc., Public Entity Risk Services of Iowa, LLC and York Risk Pooling Consultants, Inc., together with their employees, volunteers, employers, principals, agents, insurers, attorneys, officers, directors, predecessors, subsidiaries, affiliates, successors and assigns (collectively referred to herein as the "Releasees "), of and from any and all liability, claims, demands, charges, complaints, controversies, actions, causes of action, and suits at law or in equity, of any kind or nature whatsoever, known or unknown, asserted or unasserted, suspected or unsuspected, including without limitation any claim which was or could have been raised by Releasor in a court of law or any other forum, and any claim under any local, state or federal statute, and any claim under any other statutory, administrative, constitutional, contractual, tort, common law or other legal or equitable theory whatsoever, which Releasor at any time heretofore had or claimed to have had or which Releasor may have or claim to have regarding any matter as of the date of this Full and Final Release of all Claims ( "Release "), including without limitation, any and all claims related or in any manner incidental to the complaint filed in the United States District for the Northern District of Iowa as Case No. C10 -1032, (hereinafter collectively referred to as "claim" or "claims "). This Release by Releasor includes the complete and total satisfaction of any claim Releasor may have had against Releasees including without limitation claims for personal injuries, emotional distress, medical expenses, wage loss, lost benefits, loss of income, loss of services, loss of consortium, loss of property, damage to property, mental anguish, prejudgment interest, post- settlement interest, general damages, liquidated damages, exemplary damages, compensatory damages, punitive damages, infringement of civil /constitutional rights, unreasonable search, arrest without probable cause, false arrest, false imprisonment, assault and battery, unlawful arrest, malicious prosecution, use of excessive force, failure to properly investigate, failure to train, acquiescence in unconstitutional conduct, maintenance of an unconstitutional custom, policy or practice, failure to discipline, and expenses including but not limited to attorney fees and costs, together with any and all other loss, damage, and claim of every kind, nature, and description, resulting from or hereinafter resulting from the acts and omissions of the Releasees. As further consideration for the payment of the aforesaid sum, Releasor shall irnrnediately dismiss the Complaint filed in the United States District for the Northern District of Iowa, Case No. C10-1032 with prejudice. Releasor acknowledges that there was insufficient evidence to pursue any racial discrimination claim as alleged in C10 -1032. Releasor shall pay at his sole cost and expense all bills and expenses incurred by Releasor as a result of the claims and Releasees shall have no Page 1 of 3 liability for same. Releasor further agrees to reimburse any person, insurance company, or other entity that has paid, on behalf of the Releasor, any bills or expenses incurred in connection with the claims and Releasees shall have no liability for same. Releasor does hereby agree to indemnify, defend and hold the Releasees harmless from and against any and all liability, claims, demands, actions, causes of action and suits at law or in equity, for injuries, expenses, and damages known or unknown, made against or sustained by the Releasees, as a result of any amounts sought, claimed, or recovered by any insurer, person, governmental agency or other entity subrogated to the rights of Releasor, against the Releasees, or by any hospital, physician, medical provider or provider of services of whatever kind which provided medical, hospital, or services of any kind to the Releasor. Such indemnification shall include without limitation any and all attorney fees, court costs and any and all other costs and expenses. Releasor does hereby agree to indemnify, defend and hold Releasees harmless from and against any and all liability, claims, demands, actions, causes of action and suits at law or in equity, for injuries, expenses, and damages known or unknown, made against or sustained by Releasees as a result of any amounts sought, claimed, or recovered by any person who may now have or may assert in the future a claim for loss of any services or consortium as a result of the occurrence identified above. Such indemnification shall include without limitation any and all attorney fees, court costs and any and all other costs and expenses. Releasor acknowledges that the Releasees deny liability and responsibility for any and all claims, and Releasor further acknowledges that the payment of the foregoing sum shall not be construed as an admission of liability and is solely paid to preclude any additional litigation expenses. Releasor represents and warrants that he has not assigned all or any portion of the rights, titles, and /or interests in or with respect to the matters released hereunder, and that no trustee in bankruptcy or assignee for the benefit of creditors has any right to the Releasor's claims hereby released. Releasor also agree that the Releasees may use this Release against Releasor, Releasor's successors, or any other person, in court or elsewhere, to show that no person is entitled to any additional consideration should they ever attempt to assert any other claim for any reason whatsoever against the Releasees as a result of the occurrence. Releasor further agrees that he will be responsible for payment of any and all taxes, if any, including but not limited to federal, state, and local taxes, as a result of the payment and receipt of the foregoing sum. Releasor further acknowledges that he fully understands the terns of the settlement and that he voluntarily accepts said sum for the purpose of making full and final compromise, adjustment, and settlement of any losses and damages. Releasor agrees that this Release shall in all respects be interpreted, enforced, and governed by the laws of Iowa. The language of all parts of this Release shall in all cases be construed as a whole, according to its fair meaning. If, after the date hereof, any provision of this Release is held to be illegal, invalid or unenforceable under present or future laws effective during the tern of this Release, such provision shall be fully severable. In lieu thereof, there shall be added a provision as similar in terms to such illegal, invalid or unenforceable provision as may be possible, and be legal, valid and enforceable. Page 2 of 3 This Release may be executed in multiple counterparts, and all counterparts executed by the parties, whether or not such counterparts shall bear the execution of each of the parties, shall be deemed to be, and shall be construed as one in the same agreement. THE UNDERSIGNED HAS READ THE FOREGOING FULL AND FINAL RELEASE OF ALL CLAIMS AND FULLY UNDERSTANDS IT. RELEASOR: MICHAEL COOPER COUNTY OF ) SS: STATE OF Iowa ) Sworn to before me and subscribed by the said MICHAEL COOPER, who signed the foregoing Release and acknowledged to me that it was voluntarily signed this day of , 2012. S: \WPdocs\ BRENDA \LV R \PERSCooper.Release.wpd Notary Public Page 3 of 3 FULL AND FINAL RELEASE OF ALL CLAIMS The undersigned, ANTOINE CLEMONS, individually, and on behalf of his heirs, executors, administrators, successors, assigns, subrogees, personal representatives, attorneys, and anyone claiming by or through them (collectively referred herein to as the "Releasor "), for and in consideration of the payment of the sum of Fifty Thousand Dollars ($50,000.00), the receipt and sufficiency of which is hereby acknowledged, does hereby irrevocably and unconditionally waive, release, acquit, and forever discharge the CITY OF DUBUQUE (including its elected and appointed officials in their individual and official capacities), BRIAN WULLWEBER, individually and in his official capacity, the Iowa Corrununities Assurance Pool, American Risk Pooling Consultants, Inc., Public Entity Risk Services of Iowa, LLC, and York Risk Pooling Consultants, Inc., together with their employees, volunteers, employers, principals, agents, insurers, attorneys, officers, directors, predecessors, subsidiaries, affiliates, successors and assigns (collectively referred to herein as the "Releasees "), of and from any and all liability, claims, demands, charges, complaints, controversies, actions, causes of action, and suits at law or in equity, of any kind or nature whatsoever, known or unknown, asserted or unasserted, suspected or unsuspected, including without limitation any claim which was or could have been raised by Releasor in a court of law or any other forum, and any claim under any local, state or federal statute, and any claim under any other statutory, administrative, constitutional, contractual, tort, common law or other legal or equitable theory whatsoever, which Releasor at any time heretofore had or claimed to have had or which Releasor may have or claim to have regarding any matter as of the date of this Full and Final Release of all Claims ( "Release "), including without limitation, any and all claims related or in any manner incidental to the complaint filed in the United States District for the Northern District of Iowa as Case No. C10 -1032, (hereinafter collectively referred to as "claim" or "claims "). This Release by Releasor includes the complete and total satisfaction of any claim Releasor may have had against Releasees including without limitation claims for personal injuries, emotional distress, medical expenses, wage loss, lost benefits, loss of income, loss of services, loss of consortium, loss of property, damage to property, mental anguish, prejudgment interest, post - settlement interest, general damages, liquidated damages, exemplary damages, compensatory damages, punitive damages, infringement of civil /constitutional rights, unreasonable search, arrest without probable cause, false arrest, false imprisonment, assault and battery, unlawful arrest, malicious prosecution, use of excessive force, failure to properly investigate, failure to train, acquiescence in unconstitutional conduct, maintenance of an unconstitutional custom, policy or practice, failure to discipline, and expenses including but not limited to attorney fees and costs, together with any and all other loss, damage, and claim of every kind, nature, and description, resulting from or hereinafter resulting from the acts and omissions of the Releasees. As further consideration for the payment of the aforesaid sum Releasor agrees not to appeal the dismissal of his Complaint in Case No. C10 -1032. Releasor acknowledges that there was insufficient evidence to pursue any racial discrimination claim as alleged in C10 -1032. Releasor shall pay at his sole cost and expense all bills and expenses incurred by Releasor as a result of the claims and Releasees shall have no liability for same. Releasor further agrees to reimburse any Page 1 of 3 person, insurance company, or other entity that has paid, on behalf of the Releasor, any bills or expenses incurred in connection with the claims and Releasees shall have no liability for same. Releasor does hereby agree to indemnify, defend and hold the Releasees harmless from and against any and all liability, claims, demands, actions, causes of action and suits at law or in equity, for injuries, expenses, and damages known or unknown, made against or sustained by the Releasees, as a result of any amounts sought, claimed, or recovered by any insurer, person, governmental agency or other entity subrogated to the rights of Releasor, against the Releasees, or by any hospital, physician, medical provider or provider of services of whatever kind which provided medical, hospital, or services of any kind to the Releasor. Such indemnification shall include without limitation any and all attorney fees, court costs and any and all other costs and expenses. Releasor does hereby agree to indemnify, defend and hold Releasees harmless from and against any and all liability, claims, demands, actions, causes of action and suits at law or in equity, for injuries, expenses, and damages known or unknown, made against or sustained by Releasees as a result of any amounts sought, claimed, or recovered by any person who may now have or may assert in the future a claim for loss of any services or consortium as a result of the occurrence identified above. Such indemnification shall include without limitation any and all attorney fees, court costs and any and all other costs and expenses. Releasor acknowledges that the Releasees deny liability and responsibility for any and all claims, and Releasor further acknowledges that the payment of the foregoing sum shall not be construed as an admission of liability and is solely paid to preclude any additional litigation expenses. Releasor represents and warrants that he has not assigned all or any portion of the rights, titles, and /or interests in or with respect to the matters released hereunder, and that no trustee in bankruptcy or assignee for the benefit of creditors has any right to the Releasor's claims hereby released. Releasor also agree that the Releasees may use this Release against Releasor, Releasor's successors, or any other person, in court or elsewhere, to show that no person is entitled to any additional consideration should they ever attempt to assert any other claim for any reason whatsoever against the Releasees as a result of the occurrence. Releasor further agrees that he will be responsible for payment of any and all taxes, if any, including but not limited to federal, state, and local taxes, as a result of the payment and receipt of the foregoing sum. Releasor further acknowledges that he fully understands the terns of the settlement and that he voluntarily accepts said sum for the purpose of making full and final compromise, adjustment, and settlement of any losses and damages. Releasor agrees that this Release shall in all respects be interpreted, enforced, and governed by the laws of Iowa. The language of all parts of this Release shall in all cases be construed as a whole, according to its fair meaning. If, after the date hereof, any provision of this Release is held to be illegal, invalid or unenforceable under present or future laws effective during the term of this Release, such provision shall be fully severable. In lieu thereof, there shall be added a provision as similar in terns to such illegal, invalid or unenforceable provision as may be possible, and be legal, valid and enforceable. Page 2 of 3 This Release may be executed in multiple counterparts, and all counterparts executed by the parties, whether or not such counterparts shall bear the execution of each of the parties, shall be deemed to be, and shall be construed as one in the same agreement. THE UNDERSIGNED HAS READ THE FOREGOING FULL AND FINAL RELEASE OF ALL CLAIMS AND FULLY UNDERSTANDS IT. RELEASOR: ANTOINE CLEMONS COUNTY OF SS: STATE OF Iowa Sworn to before me and subscribed by the said ANTOINE CLEMONS, who signed the foregoing Release and acknowledged to me that it was voluntarily signed this day of , 2012. S: \WPdocs \BRENDA\LV R\PERSClemons.Release.wpd Notary Public Page 3 of 3