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HomeMy WebLinkAboutReso 2014-2260RESOLUTION NO. 2014 -�';a(AO A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF SUNNY ISLES BEACH, FLORIDA, APPROVING SETTLEMENT AGREEMENT AND MUTUAL GENERAL RELEASE ATTACHED HERETO AS EXHIBIT "A" FOR SETTLEMENT IN THE LAWSUIT STYLED "CARIDAD MARTINEZ V. CITY OF SUNNY ISLES BEACH, CASE NO.: 14- 20469- CIV- WILLIAMS /SIMONTON" PENDING BEFORE THE U.S. DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA; AUTHORIZING THE CITY TO PAY REASONABLE ATTORNEY'S FEES AND COSTS ASSOCIATED WITH THE CASE; PROVIDING THE CITY MANAGER AND CITY ATTORNEY WITH THE AUTHORITY TO DO ALL THINGS NECESSARY TO EFFECTUATE THIS RESOLUTION; PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, former City employee Caridad Martinez filed a lawsuit under 29 U.S.C. 201 -216 Overtime Wage Violation against the City; and WHEREAS, this action is pending in the U.S. District Court for the Southern District of Florida; and WHEREAS, the City and the Plaintiff have reached an agreement whereby for consideration and promises contained in the Settlement Agreement and Mutual General Release (the "Agreement ") the Parties unconditionally release and discharge each other from any and all claims, demands, liability, and cause of action of any kind or nature; and WHEREAS, the City Commission wishes to accept the terms and conditions outlined in the Settlement Agreement and Mutual General Release. NOW THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF SUNNY ISLES BEACH, FLORIDA, AS FOLLOWS: Section 1. Approving the Settlement Agreement and Mutual General Release. The Settlement Agreement and Mutual General Release in the lawsuit styled "Martinez v. City of Sunny Isles Beach ", attached hereto as Exhibit "A" is hereby approved. Section 2. Authorizing the City to pay reasonable attorney's fees and costs. The City authorizes the payment of reasonable attorney's fees and costs associated with the case. Section 3. Authorization of the City Manager and City Attorney_ The City Manager and the City Attorney are hereby authorized to do all things necessary to effectuate same. Section 4. Effective Date. This Resolution shall become effective upon adoption. Page I of 2 PASSED AND ADOPTED this ATTEST: Jane A. Hines, City Clerk, MMC Vote: 'S b day of June 2014. orman S. Edelcup, 'nn Moved by: cat r C\ P%-L-I'Do Seconded by: 0UYY_VM%S.SNw3ER el 1 k-) Mayor Edelcup l/ (Yes) (No) Vice Mayor Aelion ✓(Yes) (No) Commissioner Gatto (Yes) (No) Commissioner Levin es) (No) Commissioner Scholl �(Yes) (No) Page 2 of 2 SETTLEMENT AGREEMENT AND MUTUAL GENERAL RELEASE CITY OF SUNNY ISLES BEACH, including all of its officers, directors, representatives, shareholders, owners, agents, employees, successors and assigns, (hereinafter collectively referred to as "Defendant ") and CARIDAD MARTINEZ, including her heirs, representatives, attorneys, successors, and assigns, (hereinafter referred to as "Plaintiff'), for good and valuable consideration, receipt of which is hereby acknowledged, and in order to resolve and settle finally, fully and completely all matters or disputes that now exist or may exist between them, agree as follows: 1. Mutual General Release. In consideration for the promises contained in this Settlement Agreement and General Release (the "Agreement "), the Parties unconditionally release and discharge each other (collectively referred to as the "Released Parties ") from any and all claims, demands, liabilities, and causes of action of any kind or nature, whether known or unknown, or suspected or unsuspected, which either party now owns or holds, or has owned or held against each other, including, but not limited to, any and all claims, demands, liabilities, or causes of action which arise out of, or are in any way connected with each Plaintiff's employment with, or the separation of their employment with the Defendant, or which arise out of or are in any way connected with any loss, damage, or injury whatsoever to Plaintiff resulting from any act or omission by or on the part of the Defendant committed prior to the date of this Agreement. Included in the claims, demands, liabilities, and causes of action being released and discharged by Plaintiff are all claims under Title VII of the 1964 Civil Rights Act; the Civil Rights Act of 1991; the Age Discrimination in Employment Act; the Older Workers Benefit Protection Act; the Equal Pay Act; the Fair Labor Standards Act ( "FLSA "); the Employee Retirement Income Security Act (` ERISA "); the Americans with Disabilities Act of 1990 ( "ADA "); the Rehabilitation Act of 1973; the Family and Medical Leave Act of 1993; 42 U.S.C. §§ 1981, 1985(3), and 1986; the Occupational Safety and Health Act; Chapter 760, Florida Statutes; the Florida Private Whistle- blower's Act of 1991; Chapter I I A of the Miami -Dade County Code; and any and all other laws, statutes, ordinances, treaties, rules or regulations of the United States of America, or any other country, state, county, municipality, or political subdivision thereof. This Release includes all claims which were, or could have been, asserted by the Released Parties against each other in the lawsuit styled CARIDAD MARTINEZ v. CITY OF SUNNY ISLES BEACH, Case No.: 14- 20469- CIV- WILLIAMS /SIMONTON pending before the U.S. District Court for the Southern District of Florida (hereinafter referred to as the "Litigation "). 2. Settlement Amount and Attorney's Fees. In consideration of the promises of Plaintiff as set forth herein, the Parties agree to settle Plaintiff's claim for a total of Fourteen Thousand Dollars and no Cents ($14,000.00) which shall be issued to the J.H. Zidell P.A. Client Trust Account and delivered to J.H. Zidell P.A. within fifteen (15) days of the Court's approval of this Settlement Agreement. Out of the settlement proceeds, Plaintiff, Caridad Martinez shall receive Seven Thousand Nine Hundred Sixty Dollars and No Cents ($7,960.00). Plaintiffs Counsel shall receive Five Thousand Six Hundred Dollars and No Cents ($5,600.00) as fees and Four Hundred and Forty Dollars and No Cents ($440.00) as costs incurred in this Litigation. 1 of 4 EXHIBIT "A" 3. Indemnification. Plaintiff acknowledges and agrees that it shall be solely and exclusively Plaintiff's obligation and responsibility to report to the appropriate governmental agencies and other authorities all monies received as wages and /or other compensation under this Agreement and to report and pay all related taxes or impositions. Plaintiff shall indemnify and hold harmless Defendant, its directors, officers, subsidiaries and affiliates from and against any and all claims, damages, losses, liabilities or obligations asserted, or imposed and /or threatened against Defendant by any person or entity relating, directly or indirectly, to the monies received by Plaintiff hereunder as wages, including, without limitation, Plaintiff, the IRS, or any other person. 4. Non - Admission Clause. By entering into this Agreement, the Defendant does not admit any liability whatsoever to Plaintiff or to any other person arising out of any claims asserted, or that could have been asserted in any claim under the FLSA, and expressly deny any and all such liability. 5. Non Disparaizing Remarks. The parties agree that they will not disparage each other, by written or oral word, gesture, or any other means, nor will they make any disparaging or negative comments about each other, to any person or entity. In the event that a prospective employer requests an employment reference for Plaintiff, the parties agree that Defendant will only provide dates of employment, and /or positions held, and /or rates of pay. 6. Jurisdiction. The parties agree that jurisdiction over this matter shall be in the United States District Court for the Southern District of Florida which is presiding over the Litigation. The Agreement is governed by the substantive law of the State of Florida, and where applicable, federal law. If the district court chooses not to retain jurisdiction, then this Agreement shall be enforceable in the appropriate court in Miami -Dade County, Florida. 7. Dismissal of Lawsuit. Within five business (5) days of signing this Agreement by Defendant and delivery to Plaintiff's Counsel of a fully executed copy of this Agreement, Plaintiff's counsel agrees to file with the Court in the Litigation a Motion for Approval of the Parties' Settlement Agreement and Dismissal With Prejudice of all claims asserted by Plaintiff in this Litigation with the Court to maintain jurisdiction to enforce the terms of this Agreement, along with a proposed Order of Dismissal With Prejudice. 8. Agreement Not to Be Used as Evidence. Neither this Agreement, nor any act performed or document executed pursuant to or in furtherance of this Agreement may be deemed to be, or may be used as, an admission of, or evidence of the validity of any released claim, or of any wrongdoing in any civil, criminal or administrative proceeding in any court, administrative agency or other tribunal, other than in such proceedings as may be necessary to consummate or enforce this Agreement. Defendant, however, may file this Agreement in any action that may be brought against it in order to support a defense or counterclaim based on principals of res judicata, collateral estoppel, release, good faith settlement, judgment bar or reduction, or any other theory of claim preclusion or issue preclusion or similar defense or counterclaim. 9. Severability. In the event that one or more terms or provisions of this Agreement are found to be invalid or unenforceable for any reason or to any extent, each remaining term and 2 of 4 provision shall continue to be valid and effective and shall be enforceable to the fullest extent permitted by law. 10. Entire Agreement. This Agreement constitutes the complete understanding of the parties hereto and supersedes any and all prior agreements, promises, representations, or inducements, whether oral or written, concerning its subject matter. No promises or agreements made subsequent to the execution of this Agreement by these parties shall be binding unless reduced to writing and signed by an authorized representative of each party. 11. Enforcement. In the event any action is commenced to enforce said Settlement Agreement, the prevailing party shall be entitled to reasonable attorney's fees and costs. 12. Voluntariness. Plaintiff certifies that Plaintiff has fully read, negotiated, and completely understands the provisions of this Agreement, that Plaintiff has been advised by Defendant to consult with an attorney before signing the Agreement, and that Plaintiff is signing freely and voluntarily, and without duress, coercion, or undue influence. 13. Acceptance: Plaintiff hereby expressly agrees that the settlement payments are being accepted by the employee as full and complete consideration for all of the employee's claims under the FLSA and state wage and hour law, whether asserted in the Civil Action or otherwise that no other overtime payments, wages, tips or other compensation is due and owing from Defendant, and that Plaintiff will not be entitled to any additional amounts from Defendant pursuant to the FLSA or state wage and hour law. 14. Counterparts: This Agreement may be executed in multiple counterparts, each of which shall constitute an original, and all of which shall constitute one single Agreement. Faxed transmissions and /or copies of the signature block shall be deemed enforceable. [remainder of page intentionally left blank] 3 of 4 IN WITNESS HEREOF, the parties hereunto set their hands and seals as of the date first above written. Witness: Witness: OL Z-a�� JA- CkA c� �QvA,4S ATTEST: c& Qir�s_ Jane A. Hines, MMC, City Clerk APPROVED AS TO LEGAL FORM CARIDAD MARTINEZ C Employee CITY OF SUNNY ISLES BEACH, FLORIDA M. N 4of4 S. Edelcup, Mayor � SVNNY IS<F,r City of Sunny Isles Beach 18070 Collins Avenue, Suite 250 Sunny Isles Beach, Florida 33160 (305) 947 -0606 City Hall (305)949 -3113 Fax tiF 99,. FLO�\oPSj (305) 947 -2150 Building Department /rr OUN P� 0 305 947 -5107 Fax F S MEMORANDUM TO: Honorable Mayor and City Commission FROM: Hans Ottinot, City Attome DATE: June 19, 2014 City Commission Norman S. Edelcup, Mayor Isaac Aelion, Vice Mayor Jeanette Gatto, Commissioner Jennifer Levin, Commissioner George "Bud" Scholl, Commissioner Christopher J. Russo Ciry Manager Hans Ottinot, City Attorney Jane A. Hines, MNIC, City Clerk RE: Resolution approving the settlement agreement and mutual general release in the lawsuit styled "Caridad Martinez v. City of Sunny Isles Beach" RECOMMENDATION It is recommended that the City Commission approve the settlement agreement and mutual general release in the lawsuit styled "Caridad Martinez v. City of Sunny Isles Beach, Case No.: 14- 20469- CIV- WILLIAMS /SIMONTON ". REASONS Former City employee Caridad Martinez filed a lawsuit under 29 U.S.C. 201 -216 Overtime Wage Violation against the City. This action is currently pending in the U.S. District Court for the Southern District of Florida. The City and the Plaintiff have reached an agreement outlined in the Settlement Agreement and Mutual General Release. Per terms and conditions of the Settlement Agreement and Mutual General Release, the Plaintiff unconditionally releases the City from any and all alleged claims, demands, liability, and cause of actions, including but not limited to the Fair Labor Standards Act ( "FLSA ") or state wage and hour law. By entering into this Settlement Agreement, the City does not admit any liability whatsoever to Plaintiff, or to any other person, arising out of Plaintiffs claim for unpaid overtime wage violations against the City. Rather, this is an effort to amicably resolve the matter and avoid additional costs and attorney's fees to the City. The City agrees to settle the Plaintiffs claim for Fourteen Thousand Dollars ($14,000.00) within fifteen (15) days of the Court's approval of this Settlement Agreement. Plaintiff shall receive Seven Thousand Nine Hundred Sixty Dollars ($7,960.00) out of the settlement proceeds, and Plaintiffs attorney shall receive Five Thousand Six Hundred Dollars ($5,600.00) in attorney's fees and Four Hundred and Forty Dollars ($440.00) as costs incurred in the litigation. Aghnnda Tte Q los Date 1,, — �q - 14