HomeMy WebLinkAbout118-01 RESOLUTION0 0
RESOLUTION NO. 118-01
A RESOLUTION TO APPROVE A BUDGET ADJUSTMENT
IN THE AMOUNT OF $76,346.00 TO PAY FOR THE
COUNTEROFFER BY THE CITY COUNCIL TO SETTLE THE
SHEWMAKER V. CITY OF FAYETTEVILLE CASE WHICH WAS
ACCEPTED BY THE SHEWMAKERS
WHEREAS, on July 31, 2001, during a special meeting of the City Council
of the City of Fayetteville, Arkansas, counsel for the Shewmakers presented their
request for settlement in the amount of $152,872.00 and made arguments why the
Shewmakers could be awarded their prayed for damages exceeding $500,000.00
if this case went to trial; and
WHEREAS, City Attorney Kit Williams recommended against settling
this case and presented reasons why the City should prevail at trial; and
WHEREAS, the City Council declined to accept the Shewmakers'
settlement demand of $152,872.00, but presented a Counteroffer in the amount of
$76,436.00; and
WHEREAS, on August 8, 2001, counsel for the Shewmakers, Mr. John M.
Scott, faxed and mailed a letter accepting the City Council's Counteroffer of
$76,436.00; and
WHEREAS, a Budget Adjustment of $76,436.00 needs to be approved to
pay for this settlement.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF FAYETTEVILLE, ARKANSAS:
Section 1. That the City Council of the City of Fayetteville, Arkansas
hereby approves the Budget Adjustment attached hereto in the amount of
$76,436.00 to pay for the complete and final settlement of the case Richard and
Elizabeth Shewmaker v. City of Fayetteville - CIV 2000-671-4, Circuit Court of
Washington County, Arkansas.
• • Res, 118-01
Section 2. That the City Council of the City of Fayetteville, Arkansas
directs the City Attorney to pay $76,436.00 to the Shewmakers in exchange for a
full and final Release and Satisfaction of all claims and dismissal of this case.
PASSED and APPROVED this the 21st day of August, 2001.
Woodruff,
APPROVED:
By:
DAN COODY, Mayor
• City of Fs tile, Arkansas
Budget Adjustment Form U Y I
Budget YearVi
rtterd General Government
2001ion: Date Requested &I Adjustment #
Miscellaneous
Project or Item Requested:
A budget adjustment is requested to fund the settlement agreement
that resolves the Shewmaker case.
Justification of this Increase:
City Council offered to settle and the Shewmakers accepted
the settlement offer.
Project or Item Deleted:
None. Use of fund balance is proposed for this adjustment.
Justification of this Decrease:
Increase Expense (Decrease Revenue)
Account Name Amount _ Account Number PTject Number
Settlements 76,936 1010 6600 5311 09
Account Name
Use of Fund Balance
Decrease Expense (Increase Revenue)
Amount Account Number Project Number
76,936 1010 0001 9999 99
s _., D:
rvices
rtrector
Date
Budget Office Use Only
Type: A B C O
Date of Approval
Posted to Project Accounting
Entered in Category Log
NAME OF FILE: Resolution No. 118-01
CROSS REFERENCE:
08/21/01 Resolution No. 118-01
Copy of the Budget Adjustment Form in the amount of $76,436.00.
08/21/01 Release
08/08/01 Letter to Kit Williams, City Attorney, from John M. Scott, Everett Law
Firm
08/09/01 Letter to John M. Scott, Everett Law Firm, from Kit Williams, City
Attorney
08/21/01 Staff Review Form
08/27/01 Departmental Memo to Kit Williams, City Attorney, from Heather
Woodruff, City Clerk
NOTES:
• • gy"O/
EVERETT LAW FIRM
ATTORNEYS AT LAW
1944 EAST JOYCE BLVD.
P.O. BOX 8370
FAYETTEVILLE;ARKANSAS
72703-8370
e-mail johnscott@evcmttfim.com
JOHN C. EVERETT
JASON H. WALES, P.A.
JOHN M. SCOTT, P.A.
ELIZABETH E. STOREY
July 12, 2001
Mr. Kit Williams
Fayetteville City Attorney
113 W. Mountain
Fayetteville, AR 72701
Re: Richard Shewmaker and Elizabeth "Betty" Shewmaker
v. City of Fayetteville, Arkansas
Dear Kit:
TELEPHONE:
(501) 443-0292
FACSIMILE:
(501)443-0564
Yesterday I talked to Heather Woodruff regarding a special hearing on our settlement offer. She
indicated she would set that hearing for Tuesday, July 24, 2001 at 4:30 p.m. I suggested that each
side be allotted 30 minutes to present his version of the story. I anticipate doing all or most of the
talking, and I intend to allow some time for questions from the council. In light of your
recommendation to the council, I do not intend to lay our entire case on the table. We'll save that
for discovery if the case does not settle.
Let me know if you have any questions.
Sincerely,
EVERETT LAW FIRM
JMS/trb
cc: Richard Showmakei
FAC'E'T" VEN7?LLE
THE CITY OF FAYETTEVILLE, ARKANSAS
KIT WILLIAMS; CITY ATTORNEY
DAVID WHITAKER, ASST. CITY ATTORNEY
DEPARTMENTAL CORRESPONDENCE
TO: Dan Coody, Mayor
City Council Members
I
LEGAL DEPARTMENT
FROM: Kit Williams, City Attorney ("v
DATE: July 13, 2001 RECEIVED
JUL 13 2001
RE: Shewmaker v. City CITY OF FAY rTTEVILLE
CITY CLERICS OFFICE
Attached please find a letter that I received from John Scott,
attorney for Richard and Betty Shewmaker. They request a special
hearing on their settlement offer.
07-13-01P03:12 RC
RESOLUTION NO.
A RESOLUTION TO APPROVE A BUDGET ADJUSTMENT
IN THE AMOUNT OF $76,346.00 TO PAY FOR THE
COUNTEROFFER BY THE CITY COUNCIL TO SETTLE THE
SHEWMAKER V. CITY OF FAYETTEVILLE CASE WHICH WAS
ACCEPTED BY THE SHEWMAKERS
WHEREAS, on July 31, 2001, during a special meeting of the City Council
of the City of Fayetteville, Arkansas, counsel for the Shewmakers presented their
request for settlement in the amount of $152,872.00 and made arguments why the
Shewmakers could be awarded their prayed for damages exceeding $500,000.00
if this case went to trial; and
WHEREAS, City Attorney Kit Williams recommended against settling
this case and presented reasons why the City should prevail at trial; and
WHEREAS, the City Council declined to accept the Shewmakers'
settlement demand of $152,872.00, but presented a Counteroffer in the amount of
$76,436.00; and
WHEREAS, on August 8, 2001, counsel for the Shewmakers, Mr. John M.
Scott, faxed and mailed a letter accepting the City Council's Counteroffer of
$76,436.00; and
WHEREAS, a Budget Adjustment of $76,436.00 needs to be approved to
pay for this settlement.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF FAYETTEVILLE, ARKANSAS:
Section 1. That the City Council of the City of Fayetteville, Arkansas
hereby approves the Budget Adjustment attached hereto in the amount of
$76,436.00 to pay for the complete and final settlement of the case Richard and
Elizabeth Shewmaker v. City of Fayetteville - CIV 2000-671-4, Circuit Court of
Washington County, Arkansas.
Section 2. That the City Council of the City of Fayetteville, Arkansas
directs the City Attorney to pay $76,436.00 to the Shewmakers in exchange for a
full and final Release and Satisfaction of all claims and dismissal of this case.
PASSED and APPROVED this the day of August, 2001.
APPROVED:
By:
DAN COODY, Mayor
ATTEST:
By:
Heather Woodruff, City Clerk
• • Res. No. 118-01
RELEASE ORIGINAL
KNOW ALL MEN BY THESE PRESENTS:
For the sole consideration of Seventy -Six Thousand Four Hundred
Thirty -Six Dollars ($76,436.00), the receipt and sufficiency whereof is hereby
acknowledged, the undersigned do, for themselves and for their heirs, executors,
administrators, successors and assigns, hereby release and forever discharge the
City of Fayetteville and any employee, agent, servant, public official, successor,
or anyone liable or claimed to be liable as a result of the acts of The City of
Fayetteville and its employees, and further release any insurance company,
agency or group which could be construed as providing liability protection,
payment responsibility or indemnity for the City of Fayetteville, and all other
persons, firms, corporations, government agencies or organizations liable or who
might be claimed to be liable (not including Hanover Insurance Company or its
related entities), of and from any and all damages, actions, causes of action,
demands, rights, claims, costs, loss of services, loss or reduction of rent, repair
expenses and compensation, temporary or permanent damage to real or personal
property, or any other damage whatsoever which the undersigned now has or
which may hereafter accrue on account of or in any way growing out of any and
all known or unknown, foreseen or unforeseen, injuries and property damages
•
• Res. No. 118-01
ORIGINAL
and the consequences thereof resulting or which may in the future result from
the actions of the City of Fayetteville in excavating, filling, paving, vibrating,
rolling or other such activity which occurred in the Spring and Summer of 1997
around or near the buildings owned by the Shewmakers on the corner of
Dickson Street and Powerhouse Avenue in Fayetteville, Washington County,
Arkansas.
It is further understood and agreed that this settlement is a compromise of
a doubtful and disputed claim and that payment by the City of Fayetteville is not
to be construed as an admission of liability on the part of the City of Fayetteville
or parties being released, and that the City of Fayetteville denies liability, but
seeks to avoid litigation through this settlement.
It is further agreed that in the event some other party or parties should be
held responsible to the undersigned for damages as a result of the above -
described work, accident, casualty or event, the execution of this agreement and
release shall operate as a satisfaction of all of the undersigned's claim or claims
against such other party or parties to the extent of a pro -rata share of the party or
parties being released herein, of all of the undersigned's claims for damages, on
account of the aforementioned work, accident, casualty or event, recoverable by
the undersigned as against any other tortfeasor or tortfeasors.
PA
•
• Res. No. 118-01
ORIGINAL
It is expressly agreed between the parties that this Release does not
constitute a release of the Shewmakers' own building insurance company
(Hanover Insurance Company), however, the Shewmakers shall protect and
indemnify the City of Fayetteville, its employees, public officials and agents from
any subrogation or other claim by Hanover Insurance Claims based upon
payments to the Shewmakers for damage to their buildings.
IT IS FURTHER AGREED BY THE PARTIES HERETO THAT IT IS THE
INTENT OF THIS RELEASE TO COMPLY WITH THE PROVISIONS OF THE
UNIFORM CONTRIBUTION AMONG JOINT TORTFEASORS ACT (ACT 315
OF 1941), A.C.A. §16-61-201, ET SEQ., AND SPECIFICALLY A.C.A. §16-61-205,
SO AS TO PROVIDE FOR A REDUCTION, TO THE EXTENT OF THE PRO -
RATA SHARE OF THE RELEASED TORTFEASOR, OF THE INJURED
PERSONS' DAMAGES RECOVERABLE AGAINST ALL OTHER
TORTFEASORS.
The undersigned declare and represent that the damages to real and
personal property sustained are or may be permanent and progressive and that
repairs are uncertain and indefinite, and that in making this release, it is
understood and agreed that the undersigned rely wholly upon the undersigneds'
• • Res. No. 118-01
ORIGINAL
judgment, belief and knowledge of the nature and extent, effect and duration of
said damages and liability thereof, and have executed this Release without
reliance upon the statements or representation of the City of Fayetteville or their
attorneys, investigators, adjusters, agents or representatives, or on any engineer
or expert employed by the City of Fayetteville.
The undersigned further agree that the underlying cause of action,
including the plaintiff's Complaint and any amendments thereto, filed or which
could have been filed against the City of Fayetteville or its employees, public
officials, representatives, or agents in this cause of action, shall be dismissed with
prejudice and that all claims that were brought therein or which could have been
brought therein are hereby dismissed and barred with prejudice. This case is
currently filed in the Circuit Court of Washington County, Arkansas, styled as
follows: Richard Shewmaker and Elizabeth "Betty" Shewmaker v. City of
Fayetteville, Case No. CIV 2000-671-4.
As further consideration for the payment of the sums aforesaid, the
undersigned hereby agree to protect the City of Fayetteville and all parties
released and all other persons, firms, associations, governments or corporations
liable or who may be claimed to be liable as a result of the actions of the City of
4
• • Res. No. 118-01
ORIGINAL
Fayetteville, against any claims for damages, compensation, liens, subrogation,
or otherwise, on the part of the undersigned or anyone acting on their behalf or
claiming through them, by way of subrogation, or lien, and who makes a claim
against the City of Fayetteville growing out of or resulting from the work or
incident which is released herein, and further undersigned agrees to reimburse
and/or make good any loss, damage or costs that the said City of Fayetteville
may have to pay if any litigation arises as a result of the aforesaid lien, right of
subrogation or claim.
The undersigned hereby declare that the terms of this Release have been
completely read and are fully understood and voluntarily accepted for the
purpose of making a full and final compromise settlement and release of any
and all claims against the City of Fayetteville, its employees, public officials,
representatives and agents, disputed or otherwise, on account of the injuries
and/or damages above -mentioned, and for the express purpose of precluding
forever any further additional claim or claims arising out of the aforesaid
occurrence, and to reimburse or make good any loss or damage or costs that the
said releasees may have to pay if any litigation arises from said injuries and/or
damages.
5
•
• Res. No. 118-01
ORIGINAL
The undersigned further states that this release has been explained to
them by their attorney, and they understand said attorney's explanation, and
they voluntarily and willingly and with full understanding enter into this
release, knowing that it terminates all claims against the City of Fayetteville and
all releasees.
The undersigned accept payments as set forth in this Release as full and
final consideration of the amounts set forth above.
IN WITNESS WHEREOF, the undersigned plaintiffs, Richard Shewmaker
and Elizabeth Shewmaker, have hereunto set their hands and seals this the 21st
day of August, 2001.
ICHARD SHEWMAKER ELI A ETH SH 6WMA/KER
ACKNOWLEDGEMENT
STATE OF ARKANSAS )
ss
COUNTY OF WASHINGTON )
BE IT REMEMBERED, that on this date came before me, the unde{§igned notary Public
within and for the County aforesaid, duly commissioned and acting, Richard Shewmaker and
Elizabeth Shewmaker, to me well-known (or satisfactorily proven) as the persons executing the
foregoing Release, and stated that both had executed the same for the consideration and
purposes therein mentioned and set forth.
Subscribed and sworn to before me this-/ day of August, 2001.
NOTARY BLI
My Commission Expires: / a a /-
6
EVERETT LAW FIRM
ATTORNEYS AT LAW
1944 EAST JOYCE BLVD.
P.O. BOX 8370
FAYETTEVILLE, ARKANSAS
72703-8370
e-mail johnscott@evercttlirm.com
JOHN C. EVERETr
JASON H. WALES, P.A.
JOHN M. SCOTT, P.A.
ELIZABETH E. STOREY
August 8, 2001
VIA FACSIMILE AND
UNITED STATES MAIL
Mr. Kit Williams
Fayetteville City Attorney
113 W. Mountain
Fayetteville, AR 72701
Re: Richard Shewmaker and Elizabeth "Betty" Shewmaker
v. City of Fayetteville, Arkansas
Dear Kit:
TELEPHONE:
(501) 443-0292
FACSIMILE:
(501) 443-0564
My clients accept the City's offer to settle this case for $76,436.00. Please draw up a release and
forward it and the settlement check to me for signing. I will hold the check until my clients sign off
on the release. I will prepare a motion and order of dismissal.
Thank you for your cooperation in bringing this matter to a prompt conclusion.
Sincerely,
EVERETT LAW
M.
JMS/trb
cc: Richard Shewmaker
'AIJG-08-2001 WED 04:06 PM EVERETT LAW FIRM FAX NO. 501 564
P. 01
EVERETT YAW FIRM
ATTORNEYS AT LAW
1944 EAST JOYCE BLVD.
P.O. BOX 8370
FAYETTEVILLE. ARKANSAS
72703-9370
e-mail johnscott@cvcrcufirm.com
IOnN C. EVERETT
JASON 11. WALES, P.A.
JUIIN M. SCOTT, P.A.
ELIZAI1ETII E. STOREY
August 8, 2001
VIA FACSIMILE AND
UNITED STAIRS MAIL
Mr. Kit Williams
Fayetteville City Attorney
113 W. Mountain
Fayetteville. AR 72701
Re: Richard Shewmaker and Elizabeth "Betty" Shewaaker
v. City ofFayetlevilic, Arkansas
Dear Kit:
TELEPI [ONE:
(501)443-0292
FACSIMILE:
(501)443.0564
My clients accept the City's offer to settle this case for $76,436.00. Please draw up a release and
forward it and the settlement check to me for signing. 1 will hold the check until my clients sign off
on the release. I will prepare a motion and order of dismissal.
Thank you for your cooperation in bringing this matter to a prompt conclusion.
Sincerely,
EVERETT LAW
JMS/trb
cc: Richard Shewmaker
FAYETTEV&LE
Kit Williams
CITY ATTORNEY
August 9, 2001
Honorable John M. Scott
Everett Law Firm
P.O. Box 8370
Fayetteville, AR 72702-8370
RE: Shewmaker v. City of Fayetteville
Dear John:
THE CITY OF FAYETTEVILLE. ARKANSAS
By FAX:
(501) 443-0564
CITY ATTORNEY DIVISION
113 WEST MOUNTAIN, 72701
PHONE: 501.575-8313
FAX: 501.575.8315
Thank you for your letter accepting the City's counteroffer of $76,436.00 in
full settlement of your clients' claims against the City. I am preparing the
Release and have requested the settlement check. It is likely that the City
Council will have to approve a budget adjustment before the check can be
issued. However, our settlement agreement is now final even though we may
have to wait until our next City Council meeting to deliver the check to you.
You did very well
in obtaining
this settlement from
the City Council.
Congratulations on your
presentation
of your clients' case
to the City Council.
With kindest regards,
Kit Williams
Fayetteville City Attorney
KW/jh
Enclosure
FAYETTEv1LLE
Kit Williams
CITY ATTORNEY
August 9, 2001
Honorable John M. Scott
Everett Law Firm
P.O. Box 8370
Fayetteville, AR 72702-8370
RE: Shewmaker v. City of Fayetteville
Dear John:
•
THE CITY OF FAYETTEVILLE. ARKANSAS
By FAX:
(501) 443-0564
CITY ATTORNEY DIVISION
113 WEST MOUNTAIN, 72701
PHONE: 501-575-8313
FAX: 501.575.8315
Thank you for your letter accepting the City's counteroffer of $76,436.00 in
full settlement of your clients' claims against the City. I am preparing the
Release and have requested the settlement check. It is likely that the City
Council will have to approve a budget adjustment before the check can be
issued. However, our settlement agreement is now final even though we may
have to wait until our next City Council meeting to deliver the check to you.
You did very well
in obtaining
this settlement
from
the City Council.
Congratulations on your
presentation
of your clients'
case
to the City Council.
With kindest regards,
Kit Williams
Fayetteville City Attorney
KW/jh
Enclosure
0 STAFF REVIEW FORM •
_X_ AGENDA REQUEST
CONTRACT REVIEW
GRANT REVIEW
08-09-01PO2:15 RCVD
FOR: COUNCIL MEETING OF August 21, 2001 MAYOR'S APPROVAL
FROM:
Kit Williams Legal City Attorney
Name Division Department
ACTION REQUIRED:
Approval of Budget Adjustment to pay for the City Council's Counteroffer to settle the
Shewmaker case which has been accepted.
COST TO CITY:
$76,436.00 $75,645.00
Cost of this Request Category/Project Budget Category/Project Name
1010-6600-5311.09 $75,645.00 Miscellaneous
Account Number Funds Used to Date Program Name
Project Number Remaining Balance Fund
BUDGET REVIEW: Budgeted Item _X_ Budget Adjustment Attached
Budget Coordinator Administrative Services Director
CONTRACT/GRANT/LEASE REVIEW: GRANTING AGENCY:
A g M tiger Date Internal Auditor Date
%^GI
City Attorney Date ADA Coordinator Date
Purchasing Officer Date
STAFF RECOMMENDATION:
CROSS REFERENCE
Division Head Date
New Item: Yes No
Department Director Date
Previous Ordinance/ Resolution No.:
Administrative Services Director Date
Mayor Date RECEIVED
AUG 0 9 2001
CITY OF FAYETTEVILLE
CITY CLERK'S OFFICE
•
STAFF REVIEW FORM •
AGENDA REQUEST
CONTRACT REVIEW
GRANT REVIEW
FOR: COUNCIL MEETING OF August 21, 2001 MAYOR'S APPROVAL
FROM:
Kit Williams Legal City Attorney
Name Division
Department
ACTION REQUIRED:
Approval of Budget Adjustment to pay for the City Council's Counteroffer to settle the
Shewmaker case which has been accepted.
COST TO CITY:
$76,436.00 $75,645.00
Cost of this Request Category/Project Budget Category/Project Name
1010-6600-5311.09 $75,645.00 Miscellaneous
Account Number Funds Used to Date Program Name
-0- General
Project Number Remaining Balance Fund
REVIEW: Budgeted Item X_ Budget Adjustment Attached
Coordinator
Administrative Services Director
CONTRACT/GRANT/LEASE REVIEW: GRANTING AGENCY:
t/gjol
Afeo g M ager Date Internal A itor Date
Ci t ey Date
ADA Coordinator Date
O
Purchasing Officer Date
STAFF RECOMMENDATION
Division Head
CROSS REFERENCE
Date
New Item: Yes No
D artment Director Date
Previous Ordinance/Resolution No.:
Administrative Services Director Da e
Mayor
Date
FAYETTEVItLE
THE CITY OF FAYETTEVILLE, ARKANSAS
DEPARTMENTAL CORRESPONDEN
To: Kit Williams, City Attorney
From: Heather Woodruff, City Clerk
Date: August 27, 2001
Attached is a copy of the resolution approving a budget adjustment for Shewmaker Settlement.
The original will be microfilmed and filed with the City Clerk.
cc: Emma Badgely, Accounting
Nancy Smith, Internal Audit
Steve Davis, Budget and Research