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2035 RESOLUTION c),0 3 5— A RESOLUTION APPROVING THE SETTLEMENT OF AN ACTION STYLED MICHAEL YOUNG v. CITY OF WEST MEMPHIS,ET AL., AND AUTHORIZING THE MAYOR TO EXECUTE THE SETTLEMENT AGREEMENT AND TO TAKE SUCH OTHER ACTIONS AS MAY BE NECESSARY TO EFFECTUATE THE SETTLEMENT, AND FOR OTHER PURPOSES. WHEREAS, an action has been filed in the United States District Court for the Eastern District of Arkansas, Jonesboro Division, styled Michael Young v. City of West Memphis, et al., case number 3:11-cv-00161 which seeks damages and other relief and; WHEREAS,the City of West Memphis has denied liability and continues to deny liability for each and every cause of action alleged by the plaintiff; and WHEREAS, a tentative settlement has been negotiated by the parties, subject to the approval of the West Memphis City Council, for the dismissal of the plaintiff's Complaint with prejudice; and WHEREAS,the negotiated settlement provides for payment from the Arkansas Municipal League Legal Defense Fund to the plaintiff, and the terms of coverage by the Arkansas Municipal League Legal Defense Fund for this case require participation by the City of West Memphis in the amount of$9,000; and WHEREAS,the West Memphis City Council finds that the negotiated settlement protects the interests of the City of West Memphis and will save the expenses of protracted litigation, and is in the best interest of the City of West Memphis; NOW,THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF WEST MEMPHIS, ARKANSAS, THAT the negotiated settlement for the dismissal with prejudice of the action styled Michael Young v. City of West Memphis, et al., case number 3:11-cv-00161 in the U. S. District Court for the Eastern District of Arkansas, Jonesboro Division, is hereby approved and the Mayor is hereby authorized to execute the settlement agreement and to pay to the Arkansas Municipal League Legal Defense Fund the sum of$9,000 and to take such actions and to execute any necessary documents or pleadings to effectuate the negotiated settlement. ADOPTED this /7 day of October, 2013. (.4/1 WILLIAM H. JOHNSON, Mayor ATTEST: PHIL • 8 ' , City Clerk SPONSORED BY: IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS JONESBORO DIVISION MICHAEL YOUNG PLAINTIFF v. NO. 3:11-CV-00161-BRW CITY OF WEST MEMPHIS,ARKANSAS; DEFENDANTS WEST MEMPHIS POLICE DEPARTMENT ROBERT PAUDERT, Chief of the West Memphis Police Department in his Individual and Official Capacity as Chief Of Police; SCOTT MCCALL, In His Individual Capacity; and LESTER DITTO, In His Individual Capacity GENERAL RELEASE OF ALL CLAIMS AND SETTLEMENT AGREEMENT RECITALS: 1. The Party being released hereunder, the City of West Memphis, Arkansas; West Memphis Police Department; Robert Paudert, Chief of the West Memphis Police Department in his Individual and Official Capacity as Chief Of Police; Scott McCall, In His Individual Capacity; and Lester Ditto, In His Individual Capacity; and each of their respective servants, attorneys, principals, agents, employees, deputies, officers, representatives, elected or appointed officials, insurers, self insurers, risk management funds, predecessors, successors, assigns, affiliates, divisions, branches, departments and/or any entity or person acting by, through, under or in concert with any of them, and/or any person or entity acting directly or indirectly in the interest of and/or acting with or on behalf of any of them personally, officially or in any capacity whatsoever, shall hereinafter be referred to,jointly and individually as "Released Page 1 of 13 FOR RELEASING PARTIES FOR RELEASED PARTIES By: By: Party." 2. The party executing this Release, Michael Young, and his respective heirs, successors, assigns, executors, administrators, agents or representatives of any kind, shall hereinafter be referred to, jointly and individually, separately and collectively, as "Releasing Party". 3. This General Release and Settlement Agreement is between the Released Party and the Releasing Party, and is hereafter referred to as the "Release," or the "Agreement." 4. As used in this Agreement, the singular or plural shall be deemed to include the other whenever the context so indicates or requires. 5. As consideration for the Release, the Released Party provides the Releasing Party the following: (a) The Released Party agrees to pay the Releasing Party the total and final sum of ninety thousand dollars ($90,000.00), which amount includes any and all costs, expenses and attorneys' fees of Releasing Party. 6. In exchange for the above consideration, the receipt, sufficiency and adequacy of which is hereby expressly acknowledged, Releasing Party does hereby irrevocably and unconditionally release, acquit, remise, and forever discharge Released Party from any and all rights, promises, obligations, liens, claims, demands, liabilities, actions and causes of actions of whatever kind and character, in law or equity, in contract, tort or other, both known and unknown, disclosed and undisclosed, actual and consequential, specific and general, however, Page 2 of 13 FOR RELEASING PARTIES FOR RELEASED PARTIES By: By: denominated, including but not limited to those arising out of or in any way connected with the events and incidents of Releasing Party's arrest on June 14, 2010, that are the subject of, have been the subject of, or could have been the subject of Michael Young v. City of West Memphis, Arkansas; West Memphis Police Department; Robert Paudert, Chief of the West Memphis Police Department in his Individual and Official Capacity as Chief Of Police; Scott McCall, In His Individual Capacity; and Lester Ditto, In His Individual Capacity; In the United States District Court Eastern District of Arkansas Jonesboro Division Case No. 3:11-CV- 00161-BRW("the Lawsuit" hereafter), for any past, present, or future claim, relief or cause of action, no matter how denominated, income from any source, declaratory or injunctive relief, compensatory, liquidated or punitive damages, wages, money remuneration, or thing of value whatsoever, by the Releasing Party against the Released Party, including, without limitation any allegations, causes of action, claims and/or matters caused by, arising out of, related to or in any way connected with the employment, association, affiliation, agency or contact of whatever character or nature of Releasing Party with Released Party, and/or arising under, relating to or covered by any federal, state or local ordinance, law, statute, act, custom, usage, rule or regulation and including, without limitation, any claim or cause of actions which was, or could have been stated in the Lawsuit. 7. It is the express intent of the Releasing Party to enter into this full and fmal settlement and compromise of any and all claims against Released Party, whatsoever, arising out of events occurring up to and including the date of execution of this Release. Page 3 of 13 FOR RELEASING PARTIES FOR RELEASED PARTIES By: By: 8. It is understood, agreed and stipulated between the Parties hereto that the consideration described herein is in complete and full accord, satisfaction and discharge of any and all doubtful or disputed claims, whatsoever. 9. The Releasing Party stipulates and agrees not to initiate, join in, continue and/or institute any legal proceedings or process based on the within described claims or causes of action before any administrative, judicial, or any other forum against the Released Party, whatsoever. 10. Releasing Party further agrees not to file nor permit to be filed on their behalf, any claim, charge or cause of action, will not permit him/herself to be a member of any potential or existing class or representative action seeking relief for any matter raised herein, and/or will not counsel, participate, advance or assist in the prosecution of such claims, charge or cause of action against the Released Party for any claim or cause of action raised herein, unless ordered to do so by a court of competent jurisdiction. 11. Released Party does not, by virtue of this Agreement, admit liability to anyone or any entity as a result of any incident, act or omission described in or cognizable by the aforementioned claims or causes of action. This Agreement is entered into for the sole purpose of settlement and compromise. It is stipulated and agreed this Agreement and the negotiations of the Parties resulting in this Agreement shall not constitute admissible evidence of any matter for any purpose whatsoever, other than for the sole purpose of a claim of a breach of this Agreement. Page 4 of 13 FOR RELEASING PARTIES FOR RELEASED PARTIES By: By: 12. This Agreement is not an admission by Released Party of any unlawful acts against Releasing Party or any other person whatsoever. Released Party specifically denies any violation of any act, statute or law whatsoever. Released Party denies and disclaims any liability to Releasing Party or any other person whatsoever. 13. Releasing Party warrants and represents: (1) that he is competent and entitled to give this complete release and discharge; (2) there are no prior assignments or transfers of any portion of or interest in any of his claims or causes of action; (3) there are no liens or claims of lien or assignments in law or equity or otherwise of or against the claims or causes of action of the Releasing Party herein; and (4) Releasing Party is fully aware of all facts and rights and applicable law with regard to his claims and/or causes of action and has had the full opportunity to review and approve the content and execution of this Agreement with counsel. 14. The Releasing Party will indemnify and save harmless the Released Party herein from any loss, claim, expense, attorney fees, costs, demand, or cause of action of any kind or character through the assertion by any person of a claim or claims connected with the subject matter of this Agreement caused, counseled, initiated, aided, assisted or advanced by the Releasing Party, and from any loss incurred directly or indirectly by reason of a falsity of misrepresentation herein by the Releasing Party. The Releasing Party warrants that no individual has a claim to attorney's fees against the Released Parties. 15. Should any part of this General Release and Settlement Agreement be declared or be determined by any court to be illegal or invalid, the validity of the remaining parts, terms or Page 5 of 13 FOR RELEASING PARTIES FOR RELEASED PARTIES By: By: provisions shall not be affected thereby and said illegal or invalid part,term, or provision shall be deemed not to be a part of this General Release and Settlement Agreement. 16. It is agreed and stipulated between the Parties hereto that no applicable federal and state taxes have been withheld or paid from the $90,000, on behalf of the Releasing Party, and same is to be paid by Michael Young. The full amount described herein is to be settlement for attorney's fees and/or any and all other damages incurred by Releasing Party. The Parties shall each file all required federal, state, and local income tax returns and related filings in a manner fully consistent with the provisions contained in this Agreement. Releasing Party agrees to pay any additional taxes that may become due on the amount paid by the Released Party in consideration for the foregoing Release, and to hold the Released Party harmless from any and all claims for any taxes thereon. 17. This Agreement contains the entire agreement, understanding and stipulation between the Parties hereto, none of whom admit allegations, defenses or other assertions made in any pleading filed in the aforementioned lawsuit. It fully and finally supersedes any and all prior negotiations, promises, agreements or understandings between the Parties hereto pertaining to the subject matter hereof. The Parties have had full possession of any and all facts with regard to the claims or rights of each other, and full access to respective counsel. The terms of this Agreement are contractual, not a mere recital, and may be enforced in court. This Agreement is executed in the State of Arkansas and in all respects shall be interpreted, enforced and governed Page 6 of 13 FOR RELEASING PARTIES FOR RELEASED PARTIES By: By: under the laws of said State. Except as stated herein, the terms of this Agreement are executed without reliance upon any representation by the Released Party or any of its representatives. 18. Upon the execution of this Release by the Releasing Party and the Released Party, the Releasing Party shall take the necessary steps to obtain an Order from the Court to dismiss with prejudice the Complaint (and all amendments thereto) filed by the Releasing Party, in the Lawsuit. 19. THIS IS A FULL AND FINAL RELEASE. THE RELEASING PARTY HAS CAREFULLY READ THIS RELEASE AND EXECUTES THE SAME OF HIS OWN FREE WILL WITH A FULL UNDERSTANDING OF AND VOLUNTARY AGREEMENT TO ITS CONTENTS. WITNESS our signatures this day of , 2013. RELEASED PARTIES: RELEASING PARTIES: BY: Christian C. Michaels Michael Young Attorney for City of West Memphis, West Memphis Police Department, Robert Paudert and Lester Ditto BY: M. Keith Wren Attorney for Scott McCall Page 7 of 13 FOR RELEASING PARTIES FOR RELEASED PARTIES By: By: John Walker and Bridgette Frazier do hereby acknowledge full, complete and final satisfaction of any and all costs, expenses and attorney's fees or liens for and/or on behalf of Releasing Party in this case, whatsoever. We further state that this General Release and Settlement Agreement has been executed with my knowledge and approval. We hereby waive and/or release any and all claims for costs, expenses and /or attorney's fees, whatsoever, against the Released Party. John Walker Bridgette Frazier Attorney for Plaintiff Attorney for Plaintiff Page 8 of 13 FOR RELEASING PARTIES FOR RELEASED PARTIES By: By: ACKNOWLEDGMENT, STATE OF ARKANSAS ) ) ss COUNTY OF CRITTENDEN ) Personally appeared before me, the undersigned Notary Public, within and for the county and state aforementioned, Michael Young, after being duly sworn, and states that he has executed the foregoing instrument, styled General Release of All Claims and Settlement Agreement of his own will. DATED THIS DAY OF October 2013. Michael Young NOTARY PUBLIC MY COMISSION EXPIRES: Page 9 of 13 FOR RELEASING PARTIES FOR RELEASED PARTIES By: By: ACKNOWLEDGMENT STATE OF ARKANSAS ) ) ss COUNTY OF PULASKI ) Personally appeared before me, the undersigned Notary Public, within and for the county and state aforementioned, John Walker, after being duly sworn, and states that he has executed the foregoing instrument, styled General Release of All Claims and Settlement Agreement of his own will. DATED THIS DAY OF October 2013. John Walker NOTARY PUBLIC MY COMISSION EXPIRES: Page 10 of 13 FOR RELEASING PARTIES FOR RELEASED PARTIES By: By: ACKNOWLEDGMENT STATE OF ARKANSAS ) ) ss COUNTY OF PULASKI ) Personally appeared before me, the undersigned Notary Public, within and for the county and state aforementioned, Bridgette Frazier, after being duly sworn, and states that she has executed the foregoing instrument, styled General Release of All Claims and Settlement Agreement of his own will. DATED THIS DAY OF October 2013. Bridgette Frazier NOTARY PUBLIC MY COMISSION EXPIRES: Page 11of13 FOR RELEASING PARTIES FOR RELEASED PARTIES By: By: ACKNOWLEDGMENT STATE OF ARKANSAS ) ) ss COUNTY OF PULASKI ) Personally appeared before me, the undersigned Notary Public, within and for the county and state aforementioned, Christian C. Michaels, after being duly sworn, and states that he has executed the foregoing instrument, styled General Release of All Claims and Settlement Agreement of his own will. DATED THIS DAY OF October 2013. Christian C. Michaels NOTARY PUBLIC MY COMISSION EXPIRES: Page 12 of 13 FOR RELEASING PARTIES FOR RELEASED PARTIES By: By: ACKNOWLEDGMENT STATE OF ARKANSAS ) ) ss COUNTY OF PULASKI ) Personally appeared before me, the undersigned Notary Public, within and for the county and state aforementioned, M. Keith Wren, after being duly sworn, and states that he has executed the foregoing instrument, styled General Release of All Claims and Settlement Agreement of his own will. DATED THIS DAY OF October 2013. M. Keith Wren NOTARY PUBLIC MY COMISSION EXPIRES: Page 13 of 13 FOR RELEASING PARTIES FOR RELEASED PARTIES By: By: