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HomeMy Public PortalAbout09-7403 Settlement Agreement with Roberto Leal Sponsored by: City Manager RESOLUTION NO. n A-7 4 n 1 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF OPA-LOCKA, FLORIDA, APPROVING THE SETTLEMENT AGREEMENT IN THE MATTER OF ROBERTO LEAL VS. CITY OF OPA-LOCKA AND AUTHORIZING THE CITY MANAGER TO MAKE PAYMENT TO ROBERTO LEAL IN THE AMOUNT OF THREE THOUSAND FIVE HUNDRED DOLLARS ($3,500.00), PAYABLE FROM ACCOUNT NO. 21-521140 AS FULL AND FINAL SETTLEMENT OF ALL CLAIMS AGAINST THE CITY OF OPA-LOCKA; FURTHER AUTHORIZING PAYMENT OF TWO THOUSAND FOUR HUNDRED DOLLARS ($2,400.00) ON BEHALF OF ROBERTO LEAL, TO EDDY O. MARBAN, ESQ. FOR ATTORNEY FEES AND COSTS, PAYABLE FROM ACCOUNT NUMBER 28-514390 WHEREAS, Roberto Leal ("Leal") was an employee and former Police Officer with the City of Opa-locka("City"); and WHEREAS, Leal contends that he is owed overtime pay by the City for work performed while employed by the City's Police Department; and WHEREAS, the City Manager recommends that the City enter into a settlement in the amount of Three Thousand Five Hundred Dollars ($3,500.00) for full and final settlement of Leal's claim against the City; and WHEREAS, the City agrees to pay the amount of Two Thousand Four Hundred Dollars ($2,400.00) for attorney fees and costs to Leal's attorney, Eddy O. Marban, Esq.; and WHEREAS, the City Manager is requesting authorization from the City Commission of the City of Opa-locka ("City Commission") to pay the settlement amounts to Leal, as full and final settlement of Leal's claim and any other related claims against the City. Resolution No. 0 9—7 4 0 3 NOW, THEREFORE, BE IT DULY RESOLVED BY THE CITY COMMISSION OF THE CITY OF OPA-LOCKA, FLORIDA: Section 1. The recitals to the preamble are hereby incorporated by reference. Section 2. The City Commission of the City of Opa-locka hereby authorizes the City Manager to pay the settlement amounts of Three Thousand Five Hundred Dollars ($3,500.00) to Roberto Leal, payable from Account No. 21-521140 and Two Thousand Four Hundred Dollars ($2,400.00) for attorney fees and costs to Leal's attorney, Eddy O. Marban, Esq., payable from Account No. 28-514390, as full and final settlement of any and all claims by Leal against the City. Section 3. This resolution shall take effect immediately upon adoption. PASSED AND ADOPTED this 14 day of JANUARY _, 2009. P ,. 1 LEY MA OR Attest: Approved as to form and legal sufficiency: er orah S. I .y Burnadette Norris-Weeks City Clerk City Attorney Moved by: HOLMES Seconded by: JOHNSON Commission Vote: 4-0 Commissioner Holmes: YES Commissioner Johnson: YES Commissioner Tydus: NOT PRESENT Vice-Mayor Taylor: YES Mayor Kelley: YES SETTLEMENT, RELEASE AND CONFIDENTIALITY AGREEMENT THIS SETTLEMENT, RELEASE AND CONFIDENTIALITY AGREEMENT (the "AGREEMENT")is made this day of ,2009,by and between Roberto Leal ("LEAL") and The City of Opa-Locka, a Florida corporation, and its parents, subsidiaries or affiliated corporations ("the Company"). In consideration of mutual promises and covenants contained herein, and other good and valuable consideration,the receipt and adequacy of which is hereby acknowledged, and in order to fully and completely compromise, settle and resolve all existing disputes, disagreements, and controversies, known or unknown, the parties hereby agree as follows: I. TERMS OF PAYMENT. As consideration for the release of any and all claims that LEAL may have against the Company as of the date of execution of this AGREEMENT, the Company agrees to pay and deliver to the Law Offices of Eddy O. Marban, FIVE THOUSAND NINE HUNDRED AND 00/100 DOLLARS ($5,900.00), payable within five(5)business days of LEAL's execution of this AGREEMENT, as follows: A) Three Thousand Five Hundred and 00/100 Dollars($3,500.00),made payable to "Roberto Leal"; and B) Two Thousand Four Hundred and 00/100 Dollars($2,400.00),made payable to "Eddy O. Marban,Esq.,"representing LEAL's attorney's fees and costs. The parties agree that this sum is being paid for alleged Fair Labor Standards Act violations. LEAL agrees to indemnify and hold harmless the Company from and against any and all liability that the Company may sustain as a result of claims, demands, costs, or judgments relating to these payments. The Company shall report for tax purposes these payments with a Form 1099 using a tax I.D. number and Social Security number to be furnished by LEAL and/or his attorney. LEAL further represents that he and his legal representatives alone are entitled to the settlement funds received and there are no claims or liens whatsoever made to these funds by any other party, including any claims made by any insurance carrier. In the event that amounts paid to LEAL pursuant to this AGREEMENT are subject to any claims,liens or subrogated interests,LEAL agrees to indemnify and hold harmless the Company from and against any and all liability that the Company may sustain as a result of such claims, liens or subrogated interests. II.RELEASE. LEAL agrees to fully release the Company from any and all claims that he may have against it from the beginning of time until the date of this agreement, and to waive any right to recover in any action which may be brought on his behalf by any person or entity,including any governmental agency such as the U.S. Department of Labor, U.S. Equal Employment Opportunity Commission,The Florida Commission on Human Relations or the Department of Labor (the named agencies are meant to be illustrative rather than all-inclusive). Similarly,the Company hereby fully releases LEAL from any claims that it may have against him from the beginning of time until now. III.VOLUNTARY DISMISSAL OF SUIT. The parties hereto agree that,upon the final payment of all sums due pursuant to Paragraph I of this AGREEMENT,counsel for the parties shall deliver an Order for execution by the Court which dismisses the following action, with prejudice, including the class-action,each party bearing its own costs and fees,and which reserves jurisdiction to enforce the AGREEMENT: In the United States District Court, Southern District of Florida, styled: Roberto Leal, and others similarly-situated vs. The City of Opa-Locka, a Florida municipality, Case No. 09-23259-CIV-KING/Bandstra. IV. NON-ADMISSION OF LIABILITY. It is understood and agreed that the receipt by the parties of the consideration specified herein and the execution of this AGREEMENT is not to be considered an admission of liability on the part of any of the parties,but is in full settlement of disputed claims on which liability has been and is expressly denied. LEAL further acknowledges that the consideration he is receiving is only in recognition of the costs of further litigation. V. CONFIDENTIALITY. It is understood and agreed that the existence,terms,conditions and monetary amount of this AGREEMENT, specifically including but not limited to the fact that there has been a settlement, are confidential and that LEAL and his legal representatives shall not disclose, publicize, discuss, publish or disseminate the existence, terms, conditions or monetary amount of this AGREEMENT or the existence, terms, conditions or monetary amount of the settlement of LEAL's claims from the time the settlement was agreed upon forward. In the event any other person or entity asks LEAL or his legal representatives about the lawsuit or about any of the disputes relating to LEAL's employment with the Company,LEAL and his legal representatives shall respond only that the matter was amicably resolved and shall provide no further information. The Company agrees that the existence, terms, conditions and monetary amount of this AGREEMENT,specifically including but not limited to the fact that there has been a settlement,are confidential and that the Company and its legal representatives shall not disclose,publicize,discuss, publish or disseminate the existence,terms, conditions or monetary amount of this AGREEMENT or the existence,terms,conditions or monetary amount of the settlement of LEAL's claims from the time the settlement was agreed upon forward. In the event any other person or entity asks the Company about the lawsuit or about any of the disputes relating to LEAL's employment with the Company,the Company and its legal representatives shall respond only that the matter was amicably resolved and shall provide no further information. This confidentiality requirement does not preclude any of the parties or their legal representatives from disclosing the existence, terms, conditions and monetary amount of this AGREEMENT to their legal representatives, accountants, insurers and tax preparers or to Government officials upon request or pursuant to subpoena,Court order or a claim by the Company for contribution. In the event that any of these entities or individuals disclose the existence, terms, conditions or monetary amount of this AGREEMENT to an approved individual listed, it shall be their responsibility to advise said individual of the confidential nature of this AGREEMENT and to secure from such individual his or her assent to be bound by this confidentiality agreement not to disclose,publicize or discuss this AGREEMENT or any of their terms with anyone else. Page 2 of 4 LEAL agrees that this confidentiality provision is a material element of this AGREEMENT and is consideration for the Company entering into and executing this AGREEMENT. No action by the Company or its parents, subsidiaries,affiliated corporations or representatives shall be taken as a waiver of the Company's right to insist that LEAL, and those individuals to whom he makes disclosure of the existence or terms of this AGREEMENT, abide by this confidentiality provision. VI. PUBLIC COMMENT/BEHAVIOR. LEAL agrees that he will not make any disparaging or negative remarks concerning the Company or any of its parents,subsidiaries,affiliated corporations or associations,employees and/or representatives. The Company agrees that it will not make any disparaging or negative remarks concerning LEAL. The Company and LEAL agree that the Company will only verify LEAL's dates of employment and job held if called for an employment reference. VII. FUTURE RELATIONSHIP. LEAL, now and for the future, expressly waives, releases and surrenders any right or opportunity to, and will not seek or accept, any relationship, including that of independent contractor,agent or consultant,nor will he seek or accept employment, re-employment or reinstatement to employment with the Company or its parents, subsidiaries, affiliated corporations or associations, successors or assigns. VIII. ATTORNEY'S FEES. The parties further agree that in the event it should become necessary to take legal action in order to enforce the terms of this AGREEMENT, the prevailing party shall be entitled to additional attorney's fees and costs. IX. MISCELLANEOUS. A. Application of United States Law. This AGREEMENT and the application or interpretation thereof, shall be governed exclusively by their terms and by the laws of the United States. The United States District Court, Southern District of Florida, shall retain jurisdiction to enforce the terms of the AGREEMENT, although no portion of the AGREEMENT may be filed without an Order of the Court. B. Entire Agreement. This AGREEMENT represents the entire agreement and understanding between the parties and supersede all prior negotiations, understandings, representations (if any), and agreements made by and between the parties. C. Construction. This AGREEMENT shall not be construed against the party who drafted the same as all parties have retained experts of their choosing to review this AGREEMENT. D. Enforceability. If any term or condition of this AGREEMENT shall be declared to be illegal, invalid or unenforceable to any extent or in any application, then the remainder of this AGREEMENT and such term or condition except to such extent or in such application, shall not be affected hereby and each and every term and condition of this AGREEMENT shall be valid and enforced to the fullest extent and the broadest application permitted by law. Any future tax Page 3 of 4 consequences that may arise shall not provide a basis to set aside, or in any way alter, this AGREEMENT. E. Modification. This AGREEMENT may not be modified, supplemented or waived orally,but only by a writing signed by the party as to whom the enforcement of such modification, supplement or waiver is sought and making specific reference to this AGREEMENT. F. Binding Effect. All of the terms of this AGREEMENT shall be binding upon, and inure to the benefit of and be enforceable by,the parties and their personal or legal representatives, heirs, successors, beneficiaries and permitted assigns. G. Agreement Not to Be Used as Evidence. This AGREEMENT shall not be admissible as evidence in any proceeding except one in which a party to this AGREEMENT seeks to enforce this AGREEMENT, and this AGREEMENT has been breached or seeks contribution for amounts paid under this AGREEMENT or one in which a court or administrative agency of competent jurisdiction orders a party to produce this AGREEMENT. IN WITNESS WHEREOF, the parties have executed this Settlement, Release and Confidentiality Agreement the day and year first above written. THE CITY OF OPA-LOCKA By: Title: Date Date ROBERTO LEAL Page 4 of 4