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Jane Doe v. Yager_Claim SettlementMasterpiece on the Mississippi TO: The Honorable Mayor and City Council Members FROM: Michael C. Van Milligen, City Manager SUBJECT: Jane Doe v. Yager DATE: December 14, 2010 Dubuque All- AmencaCity 11111! 2007 Assistant City Attorney Crenna Brumwell recommends City Council approval of the settlement in the case captioned "City of Dubuque on behalf of Jane Doe v. Yager ". I concur with the recommendation and respectfully request Mayor and City Council approval. MCVM:jh Attachment cc: Barry Lindahl, City Attorney Cindy Steinhauser, Assistant City Manager Crenna Brumwell, Assistant City Attorney Michael C. Van Milli 9 en Masterpiece on the Mississippi CRENNA M. BRUMWELL, E ASSISTANT CITY ATTORNEY To: Michael C. Van Milligen City Manager DATE: December 6, 2010 RE: Jane Doe v. Yager Attachment MEMORANDUM I am writing to ask that the settlement in the case captioned "City of Dubuque on behalf of Jane Doe vs. Yager" be formally approved as part of the claims item on the consent agenda at the next regularly scheduled City Council meeting. As the case has been captioned in accordance with Iowa law to protect Jane Doe, a copy of the Settlement Agreement which is attached has been redacted. cc: Kelly Larson, Human Rights Director 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 SETTLEMENT AGREEMENT AND RELEASE This Settlement Agreement (hereinafter referred to as "AGREEMENT ") is entered into on this day of August, 2010, by and between 11.111111111111 (herein referred to as ' '), the CITY OF DUBUQUE, IOWA, an Iowa municipal corporation (herein referred to as "CITY "), (sometimes referred to herein collectively as "PLAINTIFFS "), and JOHN E. YAGER (herein referred to as "YAGER "), (sometimes referred to herein as "DEFENDANT "). RECITALS A. PLAINTIFFS commenced litigation in Iowa District Court, Dubuque . County, against DEFENDANT known. as No. 0311 CVCV 098536 (herein referred to as the "Litigation "), in which PLAINTIFFS made various claims that DEFENDANT sexually harassed11111111111111, one (herein referred to as '), and one DEBORAH NOVANDER (herein referred to as "NOVANDER "), which claims DEFENDANT answered, denying all of such claims of PLAINTIFFS; B. DEFENDANT intended to file a Counterclaim in the Litigation relating to alleged defamation of DEFENDANT by The parties have reached a resolution of the Litigation which involves the mutual release of all asserted and unasserted claims of PLAINTIFFS against DEFENDANT, release of all asserted and unasserted claims of DEFENDANT against dismissal with prejudice of the Litigation, mutual covenants not to sue, and other matters and agreements detailed below; and D. The parties desire to reduce this resolution to 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: 1. Payment by DEFENDANT. DEFENDANT will pay the sum of $30,000 in cash to represented by a check payable tog_and her attorney, Dorothy A. O'Brien, which payment shall be deposited to the trust account of attorney. 2. Management of Section 8 Residential Units. YAGER agrees that he will not directly manage any residential unit for which any portion of said unit's monthly rent is paid by Section 8 housing assistance, pursuant to 42 U.S.C. § 1437f. The parties agree that YAGER shall be allowed to retain all income from said units.. The parties further agree that the person hired, contracted with, or otherwise retained by YAGER to directly manage said units may be a member of YAGER's immediate family. PLAINl'Lh'FS understand and agree that YAGER will continue to have initial contact with all prospective tenants for the negotiation of leases, regardless of said prospective tenant's utilization of Section 8 housing assistance. The requirement of this section that YAGER not directly manage units subject to Section 8 housing assistance shall only apply after a prospective tenant and YAGER have agreed that the prospective tenant will become a tenant and YAGER has been supplied with documentation showing that Section 8 housing assistance will pay a portion of the monthly rent for said tenant's residential unit. The parties agree that YAGER may, at his sole discretion and at.any time not inconsistent with enforceable lease agreements between•YAGER and YAGER's • • tenants, choose to no longer participate in the Section 8 housing assistance program for one or more of YAGER's residential units. The parties agree that YAGER may return to directly managing said residential units if, for a period of 10 years from the execution of this AGREEMENT, no complaint filed with any federal, state, or local civil rights agency alleging sexual harassment by YAGER against any tenant which results in a probable cause determination. 3. Release By PLAINTIFFS. PLAINTIFFS, and each of them, agree to accept the payment to1111111111111111provided for in Paragraph 1 and the restrictions and conditions provided for in Paragraph 2 herein in full resolution and satisfaction of, and hereby irrevocably and unconditionally release, remise and forever discharge YAGER from any and all liabilities, actions, causes of action, contracts, agreements, promises, claims and demands of any kind whatsoever, in law or equity, whether known or unknown, suspected or unsuspected, fixed or contingent, apparent or concealed, which PLAINTIFFS, or any of them, their heirs, executors, administrators, successors or assigns ever had, now have or hereafter can, shall or may have for, upon, or by reason of any matter, cause or thing whatsoever, at any time on or before the date of execution of this AGREEMENT including, without limitation, any and all claims made or which could have been made in the Litigation, any and all contract claims, tortclaims, defamation and other personal injury claims, fraud claims, wrongful eviction claims, claims under any federal, state or municipal law, statute or regulation (including, but not limited to, Title VIII of the Civil Rights Act of 1968, the Fair Housing Amendments Act, the Iowa Civil Rights Act, and Title 8 of the City of Dubuque Ordinances), claims for exemplary damages, and claims for costs, expenses and attorneys' fees with respect thereto. 2 4. Release By DEFENDANT. YAGER hereby irrevocably and unconditionally releases, remises and forever dischargesaiMile from any and all liabilities, actions, causes of action, contracts, agreements, promises, claims and demands of any kind whatsoever, in law or equity, whether known or unknown, suspected or unsuspected, fixed or contingent, apparent or concealed, which YAGER, his heirs, executors, administrators, successors or assigns ever had, now has or hereafter can, shall or may have for, upon, or by reason of any matter, cause or thing whatsoever, at any time on or before the date of execution of this AGREEMENT including, without limitation, any and all claims which could have been made in the Litigation and any and all defamation claims. 5. Additional Released Parties. PLAINTIFFS agree that this AGREEMENT.. also releases all claims against the spouse, employees, agents, servants, insurers, attorneys, successors, predecessors, assigns and representatives of YAGER. PLAINTIFFS further agree that they have executed this AGREEMENT on their own behalf, and also on behalf of any of their heirs, executors, trustees, administrators, successors and assigns, past and present, and anyone claiming through or under them. DEFENDANT agrees that this AGREEMENT also releases all claims against officers, directors, employees, agents, servants, insurers, attorneys, successors, predecessors, assigns and representatives of each PLAINTIFF. DEFENDANT further agrees that he has executed this AGREEMENT on his own behalf, and also on behalf of any of his heirs, executors, trustees, administrators, successors and assigns, past and present, and anyone claiming through or under them. 6. PLAINTIFFS' Covenant Not to Sue. In exchange for the payment described in Paragraph 1 and the restrictions and conditions described in Paragraph 2 herein, PLAINTIFFS, and each of them, agree not to bring any lawsuit against DEFENDANT with respect to any and all claims or liability which PLAINTIFFS or any PLAINTIFF may have or claim to have against any DEFENDANT as of the date of this AGREEMENT. This includes, but is not limited to, any and all contract claims, tort claims, defamation and other personal injury claims, fraud claims, wrongful eviction claims, claims under other federal, state or municipal law, statute or regulation (including, but not limited to, Title VIII of the Civil Rights Act of 1968, the Fair Housing Amendments Act, the Iowa.Civil Rights Act, and Title 8 of the City of Dubuque Ordinances), claims for exemplary damages, and claims for costs, expenses and attorneys' fees with respect thereto. 7. PLAINTIFFS' Additional Covenant Not to Sue or Claim. PLAINTIFFS, and each of them, promise not to initiate, directly or indirectly, a lawsuit or to bring a complaint or claim against DEFENDANT, or the spouse, employees, or agents of 3 DEFENDANT, in any court, government agency, or otherwise, including, but not limited to, any complaint or claim under any federal, state or local statute, ordinance, or rule of law (including, but not limited to, Title VIII of the Civil Rights Act of 1968, the Fair Housing Amendments Act, the Iowa Civil Rights Act, and Title 8 of the City of Dubuque Ordinances). Except with respect to an alleged offending act or omission which occurs after execution of this AGREEMENT, PLAINTIFFS, and each of them, further agree not to request, or to directly or indirectly cause, any governmental agency or other person to commence any investigation or bring any action against DEFENDANT or other person or entity named in the previous sentence, and, except as provided in the first phrase of this sentence, PLAINTIFFS, and each of them, waive any remedy or recovery in any action which may be brought on behalf of any PLAINTIFF by any government agency or other person. Nothing in this AGREEMENT shall be construed to constitute a waiver of future claims, of claims that legally. cannot be waived or to prohibit 1111111111111111 from participating in the investigation of a complaint filed with the Department of Housing and Urban Development or its state or local counterpart, including, but not limited to, the Dubuque Huinan Rights Commission.111111110111is releasing her right to file a court action or to accept individual remedies or damages in any action filed on her behalf by the Department of Housing and Urban Development, its state or local counterparts, including, but not limited to, the Dubuque Human Rights Commission, or any other governmental agency against YAGER, including, but not limited to, the right to monetary damages or other individual or equitable relief. Moreover, should bring an action against YAGER on a claim or claims that a court or agency with jurisdiction concludes1011111_released pursuant to this AGREEMENT, she shall be required to pay any reasonable attorneys' fees and costs YAGER incurs in defending such an action. 8. 's Covenant Regarding DEFENDANT's Property. promises not to enter upon or attempt to lease or sublease, directly or indirectly, or induce or attempt to induce other persons to enter upon or attempt to lease or sublease any real estate owned, leased, or controlled by YAGER, his spouse, or any member of YAGER's immediate family. 9. DEFENDANT's Covenant Not to Sue. DEFENDANT agrees not to bring any lawsuit against any PLAINTIFF with respect to any and all claims or liability which DEFENDANT may have or claim to have against any PLAINTIFF as of the date of this AGREEMENT. This includes, but is not limited to, all contract claims, tort claims, defamation, assault, and other personal injury claims, extortion claims, fraud claims, claims under any federal, state or municipal law, statute or regulation, claims for exemplary damages, and claims for costs, expenses and attorneys' fees with respect thereto. 4 10. Dismissal with Prejudice of Litigation. Within fourteen (14) calendar days after execution of this AGREEMENT by PLAINTIFFS, PLAINTIFFS will execute and file a dismissal with prejudice of the Litigation. 11. Enforcement. Notwithstanding the foregoing, any party may file suit to enforce this AGREEMENT. The prevailing party(ies) in any such enforcement action shall be entitled to reasonable attorney fees and the costs of such action, in addition to any other damage or remedy granted thereto. 12. Indemnification. The CITY agrees to indemnify, defend, and hold harmless YAGER against any and all loss and damage, including but not limited to attorneys' fees, from any and every claim or demand of every kind and character by. and/or NOVANDER regarding or in any way relating to the Litigation, including but not limited to allegations of sexual harassment, discrimination, and/or abuse by YAGER against d/or NOVANDER during the time periods alleged in the pleadings connected with the Litigation. 13. Remedies. acknowledges that a breach or threatened breach by of any provision of this Agreement will subject YAGER to loss which cannot be adequately or solely measured by rules of law. IlIMMIS breaches or intends to breach any of the covenants or agreements set forth in this Agreement, YAGER shall possess, in addition to all of the remedies provided by law, the right to obtain injunctive relief against without the posting of a bond. The parties agree that any breach of this AGREEMENT by11111111111111.will cause YAGER severe and irreparable harm and the amount of such harm cannot be reasonably calculated. agrees that in the event of such a breach, she will be personally liable to YAGER for liquidated damages in the amount of Ten Thousand and 00 /100 Dollars ($10,000). shall pay such liquidated damages to YAGER within five (5) business days after written demand for such damages. Thereafter, such liquidated damages shall bear interest at the maximum lawful rate.. The remedies of YAGER contained herein shall be cumulative and not exclusive of any other remedy available at law or in equity. 14. Specific Performance. The parties agree that this AGREEMENT may be specifically enforced in court and may be used as evidence in a subsequent proceeding in which any of the parties allege a breach of this AGREEMENT. 15. Confidentiality. Except for the fact that all claims of PLAINTIFFS and all claims of DEFENDANT have been resolved, PLAINTIFFS and DEFENDANT shall 5 treat the terms and conditions of this AGREEMENT, (except for the filing of the Dismissal with Prejudice in the Iowa District Court, Dubuque County), with utmost confidentiality and no party will disclose to any other person, firm or corporation the contents of the AGREEMENT. Further, the parties shall take all reasonable measures necessary to insure that no agent or employee of any of them shall at any time use or disclose in any way any of the terms or conditions of this AGREEMENT unless compelled by subpoena, court order or other administrative order, the receipt of which each party agrees to immediately disclose to the other parties hereto prior to compliance with such subpoena, court order or administrative order. Notwithstanding the foregoing, this confidentiality provision shall not apply to disclosure to legal counsel for the parties, or their tax advisors, or to disclosure by any party of the contents of this AGREEMENT to a spouse, if applicable; however, such disclosure to a spouse of a party shall be subject to the confidential nature of this AGREEMENT. 16. No Admission. PLAIN1'LEi`FS, and each of them acknowledge that neither this AGREEMENT nor the performance hereunder by DEFENDANT constitutes any admission by DEFENDANT, of any violation of any federal, state or local law, regulation (including, but not limited to, Title VIII of the Civil Rights Act of 1968, the Fair Housing Amendments Act, the Iowa Civil Rights Act, and Title 8 of the City of Dubuque Ordinances), common law, breach of any contract or duty, tort, or any other wrongdoing of any type. PLAINTIFFS acknowledge that DEFENDANT has denied, and continues to deny that he has any liability to PLAINTIFFS, or either of them. This AGREEMENT may not be introduced as evidence or relied upon by any party in subsequent legal proceedings except proceedings alleging, arising out of, or seeking redress for breach of the terms of this AGREEMENT or to defend against claims released by this AGREEMENT. It is expressly understood and agreed by the parties that this AGREEMENT may be pleaded as a complete defense to, and in bar of, any action or proceeding brought, maintained or conducted by any party in connection with or on account of any of the matters herein above set forth. 17. Attorney Fees. Each PLAINTIFF shall pay their respective court costs, litigation expenses, and attorney fees incurred in the Litigation and resolution of all claims stemming therefrom. DEFENDANT shall pay hi&respective court costs, litigation expenses, and attorney fees incurred in the Litigation and resolution of all claims stemming therefrom. 18. No Disparagement. PLAINTIFFS and DEFENDANT agree that, as part of the consideration for this AGREEMENT, and as an expression of their mutual desire to obtain a resolution of their disputes, no PLAINTIFF at any time in any way to any person or entity will make disparaging, denigrating, or derogatory remarks, whether oral or written, about DEFENDANT whether or not such statements shall be true or 6 believed to be so and whether or not such statements are based on acts• or omissions prior to or after the execution of this AGREEMENT. PLAINTIFFS and DEFENDANT further agree that, as part of the consideration for this AGREEMENT, and as an expression of their mutual desire to obtain a resolution of their disputes, DEFENDANT at any time in any way to any person or entity will not make disparaging, denigrating, or derogatory remarks, whether oral or written, aboutillIMMOwhether or not such statements shall be true or believed to be so and whether or not such statements are based on acts or omissions prior to or after the execution of this AGREEMENT. 19. Other Agreements By PLAINTIFFS and. DEFENDANT. - Each PLAINTIFF executing this AGREEMENT acknowledges that such PLAINTIFF is entering into this AGREEMENT knowingly, voluntarily, and with full knowledge of its significance. No PLAlN1YtfF has been coerced, threatened, or intimidated into signing this AGREEMENT. DEFENDANT executing this AGREEMENT acknowledges that DEFENDANT is entering into this AGREEMENT knowingly, voluntarily, and with full knowledge of its significance. DEFENDANT has not been coerced, threatened, or intimidated into signing this AGREEMENT. 20. Miscellaneous. The parties, by their respective execution of this AGREEMENT, represent (a) that each of them has full right, power and authority to execute and deliver this AGREEMENT, (b) that this AGREEMENT is a valid and binding obligation, enforceable in accordance with its terms, and (c) that this AGREEMENT does not contain any untrue statement of a material fact nor does it fail to state a material fact necessary for purposes of the AGREEMENT by the party or parties making such statement or charged as stating all such material facts. Each party has sufficient information to enter into this AGREEMENT and each party is entering into this AGREEMENT voluntarily. This AGREEMENT contains the entire understanding between the parties with respect to the subject matter hereof and supersedes all prior agreements or understandings between the parties or any of them, with respect to the subject matter hereof. This AGREEMENT may not be changed orally, and no modification, amendment, or waiver of any of the provisions contained in this AGREEMENT shall be binding upon any party hereto unless made in writing and signed by such party. This AGREEMENT shall be binding upon and inure to the benefit of and shall be enforceable by and against the parties hereto and their respective successors, assigns, heirs, personal representatives and beneficiaries. This AGREEMENT shall be governed by and construed in accordance with the laws of the State of Iowa. This AGREEMENT may be signed via counterparts and/or via 7 facsimile signatures, which, when taken together, shall constitute an original, fully executed and binding AGREEMENT. 21. Medicare. The parties have considered Medicare's interest in this matter, if any, and declares and expressly warrants that she has sought no treatment and will not seek treatment in the future regarding any matter raised in the litigation. Nonetheless, Defendant and Defendant's attorneys believe a Medicare set aside allocation may be appropriate in this case. 1111111111111111's counsel does not believe such a set aside allocation is necessary. and her attorney declare and warrant that they are aware of the requirements of the Medicare Secondary Payer Act ("MSP"). 1.11111111111 understands that Medicare has an interest in recovering any benefits paid when it is used as a source of secondary payment. 1111111111111. and her attorney therefore agree to release, hold harmless, and indemnify YAGER and his attorneys from any remedies, reprisals, or penalties that result from 's failure to disclose or release 's status as a Medicare beneficiary or Medicare's interest in the proceeds of this settlement. In the event that any of the above information provided by or her attorney is false or in any way incorrect, shall be solely liable for any and all actions, causes of actions, penalties, claims, costs, services, compensation or the like resulting from these inaccuracies. 1111111111M acknowledges that Medicare may require her to exhaust the entire settlement proceeds on Medicare covered expenses. 1111.1111111111Swaives any claims for damages, including a private cause of action provided in the MSP, 42 U.S.C. § 1395y(b)(3)(A), should Medicare deny coverage for any reason, including the failure to establish a set aside allocation to protect Medicare's interest. 22. Severability and Enforceability. If it is determined that any portion of this Agreement is invalid or unenforceable, such determination shall not affect the validity or enforceability of any other portion of this Agreement. If the scope of any restriction contained herein is too broad to permit enforcement of such restriction to its full extent, then such restriction shall be enforced to the maximum extent permitted by law as determined by the court. Any paragraph, sentence, phrase or word which renders a restriction unenforceable should be deemed redacted to the extent necessary to render the restriction enforceable. In addition, the invalidity of any of the foregoing limitations, when applied to particular circumstances, shall not affect the validity of such limitations under dissimilar circumstances. The parties request that any court before whom this Agreement is in controversy reform the covenants herein, if such reformation is necessary to make them enforceable, to the maximum level of enforcement permissible to YAGER and equitable under the circumstances. 23. Interpretation. There shall be no presumption that this AGREEMENT is to be construed against any party, since all parties acknowledge that they understand all 8 provisions of this AGREEMENT, that they have had a full and fair opportunity to review and consider the AGREEMENT, and that they are represented by independent counsel in connection with the Litigation and the review and execution of this AGREEMENT. 24. Headings. Headings herein are provided for convenience only and are not to be construed as modifying or governing this AGREEMENT or any portion thereof. City of Dubuque, Iowa By: 9 John E. Yager STATE OF IOWA ) ) ss: COUNTY OF DUBUQUE ) On this day of , 2010, before me, the undersigned, a Notary Public in and for the State of Iowa, personally appearedIMIIIMINIP to me known to be the person named in and who executed the foregoing instrument, and acknowledged that he executed the same as his voluntary act and deed. STATE OF IOWA ) ) ss: COUNTY OF DUBUQUE ) Notary Public in and for the State of Iowa On this day of , 2010, before me, the undersigned, a notary public in and for the above county and state, personally appeared " as of the City of Dubuque, by me personally known, who being by me duly sworn, did say that he is the • of the City of Dubuque, executing the foregoing instrument; that no seal has been procured by the corporation; that this instrument was signed on behalf of the corporation by authority of its and as such officers, acknowledged the execution of this instrument to be the voluntary act and deed of the corporation by it and by him voluntarily executed. STATE OF IOWA ) ) ss: COUNTY OF DUBUQUE ) Notary Public in and for the State of Iowa. On this day of , 2010, before me, the undersigned, a Notary Public in and for the State of Iowa, personally appeared John E.Yager, to me known to be the person named in and who executed the foregoing instrument, and acknowledged that he executed the same as his voluntary act and deed. Notary Public in and for the State of Iowa 10