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Acknowledgement of Iowa Communities Assurance Pool (ICAP) Settlement of Simon vs. City of Dubuque and DalsingCity of Dubuque City Council Meeting Consent Items # 20. Copyrighted May 17, 2021 ITEM TITLE: Acknowledgement of Iowa Communities Assurance Pool (I CAP) Settlement of Simon vs. City of Dubuque and Dalsing SUMMARY: City Attorney recommending acknowledgement of the settlement release provided by the Iowa Communities Assurance Pool (I CAP) in the Simon vs. City of Dubuque and Dalsing lawsuit. SUGGESTED Receive and File; Acknowledge Suggested Disposition: DISPOSITION: ATTACHMENTS: Description Staff Memo Type Staff Memo Settlement Agreement Supporting Documentation THE COF DtUB E Masterpiece on the Mississippi CRENNA M. BRUMWELL, EsQ. CITY ATTORNEY To: Mayor Roy D. Buol and Members of the City Council DATE: May 11, 2021 Dubuque All -America City K 1',I L Ai �®il I 2007-2012.2013 2017*2019 RE: Acknowledgement of ICAP Settlement of Simon vs. City of Dubuque and Dalsing Attached is a settlement release provided by the Iowa Communities Assurance Pool (ICAP) in the Simon vs. City of Dubuque and Dalsing lawsuit. I ask for City Council acknowledgment of the settlement. ICAP will finalize the settlement and send a bill to the City for its deductible of $20,000 which is the City's only financial contribution. cc: Les Reddick, Outside Counsel Michael C. Van Milligen, City Manager Mark Dalsing, Police Chief OFFICE OF THE CITY ATTORNEY DUBUQUE, IOWA SUITE 330, HARBOR VIEW PLACE, 300 MAIN STREET DUBUQUE, IA 52001-6944 TELEPHONE (563) 589-4381 / FAX (563) 583-1040 / EMAIL cbrumwel@cityofdubuque.org AGREEMENT AND RELEASE WHEREAS, Abigail Simon hereinafter ("Simon") has filed a lawsuit in the Iowa District Court for Dubuque County asserting claims against City of Dubuque ("the "Employer"), Case No. LACV109271 (hereinafter "Lawsuit"), seeking damages in connection with her employment and the termination of her employment. The Employer has denied the claims and asserted defenses in response thereto; and WHEREAS, the Employer has denied any potential liability for the claims made and the damages sought by Simon; and WHEREAS, Simon and the Employer have now agreed to settle their dispute and all matters between them relating to or arising out of Simon's claims, and any other matters raised or which could have been raised relating to Simon's employment at the Employer; WHEREAS, Simon and the Employer now wish to confirm and memorialize their settlement of any disputes between them, NOW, THEREFORE, Simon and the Employer agree as follows: 1. RELEASE. In consideration of the covenants, promises, and conditions herein contained and the amounts to be paid hereunder, Simon, for herself and her heirs, legal representatives, successors and assigns, hereby releases and discharges the Employer and its representatives, employees, agents, officials, officers, directors, attorneys, insurers (Iowa Communities Assurance Pool (ICAP), Public Entity Risk Services of Iowa, and Sedgwick Claims Management Services, Inc. and its affiliates, and each of their officers, directors, employees, successors and assigns, Public Entity Risk Services of Iowa (PERSI) ("Released Parties") from any and all claims, causes of action, damages, liabilities, expenses, fees, and costs, which Simon ever had, now has, or may have in the future for any losses, injuries, or damages, #3278376 which occurred prior to the execution of this Agreement, whether anticipated or unanticipated, arising from, arising out of, or directly or indirectly connected with Simon's employment, the end of her employment, and her potential claims against the Employer, and the matters asserted in her Lawsuit. Simon releases the Employer from any claims that have been made or could be made involving her employment to and through the date of the execution of this Agreement. It is further agreed that the Release includes, but is not limited to, any claims to and through the date of the execution of this Agreement for discrimination based on the Age Discrimination in Employment Act, Title VII of the Equal Employment Opportunities Act, the Iowa Civil Rights Act, the Fair Labor Standards Act, Iowa Code Chapter 91A, the Americans with Disabilities Act, the FMLA, the FFCRA to the extent applicable, and any and all other claims, whether statutory or common law, including Iowa Code Chapters 139A, 686D, and any liability for COVID-19 related claims and/or benefits. Simon further acknowledges that she has no reinstatement or re -hire rights with Employer, and she agrees that she will not apply for employment with Employer at any time in the future. 2. PAYMENT AND OTHER TERMS. In consideration of the promises contained in this Agreement, and in full and final settlement of the claims the Parties may have or could have against each other in the Lawsuit, the Parties agree that upon receipt of this signed Agreement, an executed Exhibit A, and W-9s for Simon and the Fiedler Law Firm, P.L.C: (a) The Employer will pay Forty -Seven Thousand Seven Hundred Seventy eight Dollars and 65/100 ($47,778.65) as wages with payroll withholdings; 2 (b) The Employer will pay Nine -Hundred Seventy -Five Thousand Dollars and No/100 ($975,000) for Simon's claims of emotional distress damages, which will be reported on Form 1099; (c) The Employer will pay Seven Hundred Twenty -Seven Thousand Two Hundred Twenty -One Dollars and 35/100 ($727,221.35) to the Fiedler Law Firm, P.L.C, as attorney fees (which includes fees for the Kenline Finn's services) and costs which will be reported on Form 1099; and (d) The Employer will tender $82,5000 payable to the Municipal Fire and Police Retirement System of Iowa ("MFPRSI") in order to satisfy the lien filed in the Lawsuit. 3. NON -ADMISSION AND STATEMENT. The Parties to this Agreement recognize that any payments or agreements made pursuant hereto are not an admission of any liability by the Employer, including the lien asserted by MFPRSI, as the Employer disputes the validity of the same. This settlement is made for the purposes of avoiding the costs and risks of litigation. 4. DISMISSAL OF LAWSUIT. Simon agrees to execute and return to Employer a Stipulation of Dismissal of the Lawsuit with Prejudice in the form attached as Exhibit A. Within five (5) days of receipt of payment to Simon in accordance with paragraph 2 above, Simon agrees that Employer will cause the Stipulation of Dismissal to be filed with the Court, and further agrees that all contentions and claims for relief asserted in the Lawsuit are dropped for all purposes and all times. The only payment to be made by the Employer for costs of suit and attorney fees is the payment set forth in paragraph 2. 5. SEVERABILITY. If any portion or portions of this Agreement are held by a court of competent jurisdiction to conflict with any federal, state, or local law, and as a result 3 such portion or portions are declared to be invalid and of no force or effect in such jurisdiction, all remaining portions of this Agreement shall otherwise remain in full force and effect and be construed as if such invalid portion or portions had not been included herein. 6. CONSIDERATION OF AGREEMENT. Simon represents that she has discussed the terms of the settlement with her counsel and Simon's counsel has answered all questions relating to this Agreement. 7. TAX MATTERS. Simon acknowledges that the Employer does not warrant or represent any tax consequences of this Agreement, and she is relying on her own counsel and/or tax advisors and not on the Employer in that regard. If the Internal Revenue Service or the Iowa Department of Revenue disagree with the tax treatment of this settlement payment, Simon agrees to indemnify the Employer for any charges, payments, fines, fees or other costs incurred in connection therewith except as prohibited by law. 8. SIMON'S ACKNOWLEDGMENTS IN COMPLIANCE WITH THE OLDER WORKERS BENEFIT PROTECTION ACT AND THE AGE DISCRIMINATION IN EMPLOYMENT ACT. Simon agrees and hereby represents that this Agreement is knowingly and voluntarily entered into, and specifically that: a. Simon has carefully read all of the terms of this Agreement and states that this Agreement is written in a manner calculated to be understood and which is clearly understood and that she has entered into this Agreement knowingly and voluntarily; b. This Agreement expressly waives any and all rights or claims arising under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621, et M. and the Older Workers Benefit Protection Act (OWBPA) and any similar claims under state law; c. Simon's execution of this Agreement is made in exchange for consideration additional to anything of value to which she already may have been entitled; 4 d. This Agreement does not waive/release claims, if any, that may arise after the date of execution of this Agreement; e. Simon is hereby advised in writing to consult with an attorney prior to executing this Agreement and Simon affirmatively asserts that when signing this Agreement, she was represented by Attorney Paige Fiedler with Fiedler Law Firm, P.L.C., 8831 Windsor Parkway, Johnston, Iowa f. Simon acknowledges that she has been given a copy of this Agreement and has been given twenty-one (21) days in which to consider this Agreement and that she has been provided a reasonable period of time within which to consult with counsel of her own choosing (whether or not she actually utilized the full 21-day period); g. For a period of seven (7) calendar days following Simon's execution of this Agreement, she may revoke this Agreement by timely notifying Employer's counsel, in writing, as provided for herein, of her intention to revoke, and this Agreement shall not become effective or enforceable until the revocation period has expired without such revocation, at which time this Agreement shall become effective and legally enforceable without further notice. Notice of revocation must be addressed to Les V. Reddick, Counsel for the Employer, 2100 Asbury Rd., Ste. 2, Dubuque, Iowa 52001 and postmarked or delivered prior to the expiration of the foregoing revocation period via either (1) hand delivery, (2) certified mail, return receipt requested, (3) registered mail, (4) electronic mail (email) to LReddick@kanenorbylaw.com or (5) facsimile to (563) 582-5312 demonstrated by a facsimile transmittal receipt. 9. GOVERNING LAW. The Agreement shall be governed and construed in accordance with the laws of the state of Iowa. 10. ENTIRE AGREEMENT. Each Party acknowledges and agrees that no representations or promises have been made to or relied upon by any of them or by any person(s) acting for or on their behalf about the subject matter of this Agreement which are not specifically set forth herein. All prior representations and promises made by any Party to another, whether in writing or orally, are understood by the Parties to be merged in this Agreement. 11. ATTORNEYS' FEES. Simon agrees and acknowledges that any claim for attorneys' fees by Simon's attorney is Simon's sole responsibility and the payments set forth in paragraph 2 above constitute the total payments owed Simon hereunder. 12. MEDICARE REPRESENTATIONS. Simon represents that she is not currently receiving Medicare benefits and Medicare has not made any conditional payments on her behalf. Simon has not and will not apply for Social Security Disability benefits related to this incident. Simon does not anticipate any future Medicare -eligible expenses relative to any injuries suffered while an employee of the Employer. Because none of the parties anticipate any future Medicare - eligible expense, no part of the settlement is being set aside for Medicare. Simon agrees to defend, indemnify, and hold the Employer harmless from any interest asserted by Medicare. Such indemnification shall include, without limitation, any and all attorney fees, court costs, and any and all other costs and expenses. 13. CHILD SUPPORT LIENS: Simon expressly affirms that she is unaware of any child support liens, Income Withholding Orders, or demands for money owed to a government office, in any state, pertaining in any way to child support owed by Simon. Simon shall satisfy any and all liens that any court or state's department of human services or child support recovery units have at the time of entering into this Agreement for child support with the settlement proceeds. If any claim is asserted against Simon or the Released Parties in regard to any type of child support lien or similar entitlements or claims relating to Simon and this Agreement, Simon will fully indemnify, defend, and assume the cost of defense of Employer / Released Parties or its agents against such claims, and hold Employer harmless from, any and all damages or losses Employer / Released Parties may incur, including but not limited to attorneys' fees and costs. The Parties further understand and acknowledge that any present or future action or decision by a 6 state child support office, court, or applicable department of human services related to this Agreement will not render this Settlement Agreement and Release void or ineffective, or in any way affect the finality of this Settlement Agreement and Release. Abigail Simon, Plaintiff Date / t� k�419��May 17, 2021 City of Dubuque, Defendant Date By: Michael Van Milligen (Printed Name) Title: City Manager