HomeMy Public PortalAbout09-7436 Police Chief James Wright Sponsored by: City Manager
RESOLUTION NO. 0 9-7 4 3 6
A RESOLUTION OF THE CITY COMMISSION OF THE
CITY OF OPA-LOCKA, FLORIDA, RESCINDING
RESOLUTION 08-7361 AND AUTHORIZING THE CITY
MANAGER TO SETTLE THE PENDING LAWSUIT
BROUGHT BY FORMER POLICE CHIEF JAMES
WRIGHT AND FURTHER AUTHORIZING THE CITY
MANAGER TO ISSUE A FORM 1099 IN CONNECTION
WITH PAYMENT IN EXCHANGE FOR A RELEASE
AGREEMENT PROVIDING FOR INDEMNIFICATION TO
THE CITY
WHEREAS, James Wright ("Wright") was an employee and the former Police Chief of
the City of Opa-locka("City"); and
WHEREAS, Wright and the City entered into a written contract for employment with the
City dated February 14, 2005 and;
WHEREAS, the City and Wright agree that it is in the best interest of all involved to
settle the pending litigation filed by Wright against the City of Opa-Locka; and
WHEREAS, on October 8, 2008, the City Commission of the City of Opa-locka ("City
Commission") adopted Resolution 08-7361 and voted to pay Wright as follows: Eight Nine
Thousand Two Hundred and Forty Four Dollars and Ninety Two Cents ($89,244.92) for net
salary; Thirty-Two Thousand Two Hundred Sixteen Dollars and Nine Cents ($32,216.09) for
State FRS and third party provider retirement and deferred compensation benefits; and Twelve
Thousand Four Hundred Eighty-Six Dollars and Twenty cents ($12,486.20) to third party
providers for insurance benefits; and
WHEREAS, settlement of the matter of James Wright v. City of Opa-Locka, Case # 08-
62478CA 6, will not require the City to pay any additional amount from the passage of
Resolution No. 0 9—7 4 3 6
Resolution 08-7361, but would require City to issue Wright a Form 1099 in exchange for a
Release and Settlement Agreement providing for full indemnification to City; and
WHEREAS, the City Commission desires to rescind Resolution 08-7361 and authorize
the City Manager to pay to Wright the negotiated settlement amounts specified in Exhibit "A"
and enter into a Settlement Agreement with Wright for full and final settlement of any and all
claims arising out of Wright's employment with City, as set forth in Exhibit"B."
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 rescinds Resolution
08-7361 in its entirety.
Section 3. The City Commission of the City of Opa-locka hereby authorizes the City
Manager to settle the pending lawsuit brought against the City by Former Police Chief James
Wright and further authorizes the City Manager to issue a Form 1099 in connection with
payment of the negotiated settlement amounts set forth in Exhibit "A" and in exchange for a
Release and Settlement Agreement for any and all claims arising out of Wright's employment
with City which provides for indemnification to the City, as set forth in Exhibit"B."
Section 4. This resolution shall take effect immediately upon adoption.
PASSED AND ADOPTED this 25 day of FFRRiIARY, 2009.
Resolution No. 0 9-7 4 3 6
dip.0,
di-via&
JO " L KELL : Y
MA OR
Attest: Approved as to form and legal sufficiency:
AOOP ZAP
Deborah S. Ir ay Btu ade Nor eeks
City Clerk City • ttorne-
Moved by: JOHNSON
Seconded by: TAYLOR
Commission Vote: 4-0
Commissioner Tydus: YES
Commissioner Holmes: OUT OF ROOM
Commissioner Johnson: YES
Vice-Mayor Taylor: YES
Mayor Kelley: YES
Sponsored by: City Manager
RESOLUTION NO. 08-7361
A RESOLUTION OF THE CITY COMMISSION OF THE
CITY OF OPA-LOCKA, FLORIDA, AUTHORIZING THE
CITY MANAGER TO MAKE A PAYMENT TO FORMER
POLICE CHIEF JAMES WRIGHT IN THE AMOUNT OF
EIGHTY NINE THOUSAND TWO HUNDRED FORTY-
FOUR DOLLARS AND NINETY-TWO CENTS ($89,244.92)
PAYABLE FROM ACCOUNT NUMBER 26-521110;
AUTHORIZING PAYMENT OF THIRTY-TWO
THOUSAND TWO HUNDRED SIXTEEN DOLLARS AND
NINE CENTS ($32,216.09) ON BEHALF OF JAMES
WRIGHT, TO THE STATE FRS AND THIRD PARTY
PROVIDER FOR RETIREMENT AND DEFERRED
COMPENSATION BENEFITS, PAYABLE FROM
ACCOUNT NUMBER 26-521220; AND AUTHORIZING
PAYMENT OF TWELVE THOUSAND FOUR HUNDRED
EIGHTY-SIX DOLLARS AND TWENTY CENTS
($12,486.20) ON BEHALF OF JAMES WRIGHT, TO THIRD
PARTY PROVIDERS FOR INSURANCE BENEFITS,
PAYABLE FROM ACCOUNT NUMBER 26-521230, AS
FULL AND FINAL SETTLEMENT OF ALL CLAIMS
AGAINST THE CITY OF OPA-LOCKA.
WHEREAS, James Wright ("Wright") was an employee and the former Police Chief of
the City of Opa-locka("City"); and
WHEREAS, Wright and the City entered into a written contract for employment dated
February 14, 2005 and;
WHEREAS, the City and Wright agree that it is in the best interest of all involved to
mutually end the employer/employee relationship between Wright and the City; and
WHEREAS,the City and Wright desire to resolve all of the outstanding issues related to
and arising out of Wright's employment by the City; and
WHEREAS,the City and Wright have reached a negotiated settlement of the claims on a
non-admission of wrongdoing or liability basis; and
Resolution No. 0 8-7 3 61
WHEREAS, the City and Wright have agreed to settle any and all claims of any kind
arising out of Wright's employment with the City; and
WHEREAS, the City and Wright have resolved all such issues to their mutual
satisfaction and desire to compromise and settle all claims and causes of action whatsoever; and
WHEREAS,the City Commission of the City of Opa-locka("City Commission") desires
to authorize the City Manager to pay the negotiated settlement amounts to Wright and on
Wright's behalf, for full and final settlement of any and all claims arising out of Wright's
employment with the City.
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 make payments in the negotiated settlement amounts of Eighty Nine Thousand Two
Hundred Forty Four Dollars and Ninety Two cents ($89,244.92) to James Wright payable from
Account No. 26-521110; Thirty-Two Thousand Two Hundred Sixteen Dollars and Nine Cents
($32,216.09) on behalf of James Wright, to the State FRS and third party provider for retirement
and deferred compensation benefits, payable from Account No. 26-521220; and Twelve
Thousand Four Hundred Eighty-Six Dollars and Twenty cents ($12,486.20) on behalf of James
Wright, to third party providers for insurance benefits, payable from Account No. 26-521230, as
full and final settlement of all claims arising out of Wright's employment with the City of the
Opa-locka.
Section 3. This resolution shall take effect immediately upon adoption.
Resolution No. 08-7361
PASSED AND ADOPTED this 8 day of OCTOBER , 2008.
ai
JOSEPH L. L Y
MAYOR
Attest: Approved as to form and legal sufficiency:
I ,
f
Deborah S. Irby madette No ' eeks
City Clerk City Attom
Moved by: JOHNSON
Seconded by: HOLMES
Commission Vote: 3-1
Commissioner Tydus: YES
Commissioner Holmes: NO
Commissioner Miller: OUT OF ROOM
Vice-Mayor Johnson: YES
Mayor Kelley: YES
City of Opa-locka
Calculation of Severance Pay
James B.Wright
SALARIES AND WAGES
Number of hours/pay period Salary Vacation Sick Total
2080 232 368
Rate per hour/pay period $ 54.82
54.82 $ 54.82
Gross earnings 114,025.60
12,718.24 20,173.76 $ 146,917.60
Less:
Federal withholding 38,668.96 3,240.56 5,820.82
OASDI 47,730.34
5,772.74 788.53 1,250.77 7,812.04
Medicare 1,653.37
184.41 292.52 2,130.30
Net salaries and wages $ 67,930.53
$ 8,504.74 $ 12,809.65 $ 89,244.92
FRINGE BENEFITS
FRS contribution payable to the State(20.92%of earnings,excluding sick leave)
Deferred Compensation Plan($219.28*26) $ 26,514.81
Total amount to be paid to third party 5,701.28
$ 32,216.09
Medical insurance($1,453.28*5mos.)
Dental insurance($72.76*5mos.) 7,266.40
Standard life/accidental death insurance($26*7mos.) 363.80
(no Standard Life premiums paid 2/08&3/08,thus the 7 mo.noted above) 182.00
Additional security life insurance(Base salary*$.041)
Total amount that will be paid by the'end of Feb. 2009 4,674.00
$ 12,486.20
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SETTLEMENT AGREEMENT AND RELEASE
THIS SETTLEMENT AGREEMENT AND RELEASE ("Agreement") is made and
entered into as of the 28th day of January, 2009, by and between James Wright,
("Wright"), and the City of Opa-Locka, ("City"). (Wright and City may be collectively
referred to as the "Parties"). Based upon the Parties' mutual obligations and
commitments as agreed, to settle all potential claims asserted or that could have been
asserted by Wright, which arose prior to the execution of this Agreement, and which
would include all federal and state law claims, as set out below, and to release any and
all further claims that may exist through the date of this Agreement.
It is expressly understood and agreed that this Agreement shall not be construed
as, or be deemed to be, evidence of an admission or concession of any wrongdoing,
fault, liability or damage whatsoever on the part of either of the Parties hereto. The
Parties specifically acknowledge that by entering into this Agreement, they admit no
wrongdoing and no liability of any kind to the other. The Parties acknowledge that this
settlement is being entered into to avoid the cost and expense of continued litigation.
RECITALS:
A. WHEREAS, Wright was employed by the City as the Chief of Police;
B. WHEREAS, the parties acknowledge that they previously entered into a written
contract for employment; and
C. WHEREAS, the parties agree that it is in the best interest of all involved to have
mutually ended the employer/employee relationship between the two of them; and
D. WHEREAS, the parties desire to resolve all of the outstanding issues related to
and arising out of Wright's employment with the City; and
E. WHEREAS, the Parties have resolved all such issues to their mutual satisfaction
and desire to compromise and settle all claims and causes of action whatsoever, and
intend that the full terms and conditions of this Settlement Agreement be set forth
herein;
F. The Parties have reached a negotiated settlement of the claims on a non-
admission of wrongdoing or liability basis;
G. In addition, the Parties have agreed to settle any and all claims of any kind
arising out of Wright's employment with the City in order to avoid all further litigation
among the Parties; and
H. The Parties hereto desire to set forth herein their understandings and
agreements in connection therewith.
823508-1 73095v1
NOW THEREFORE, for and in consideration of the payments made by City to
Wright inclusive of attorney fees and costs in the amounts referenced, incorporated and
attached as Exhibit "A" hereto, the acknowledgments, mutual promises and covenants
contained herein by the Parties, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as
follows:
1. Recitals. The above Recitals are true and correct and are incorporated
herein by reference.
2. Consideration and Payment.
City agrees to pay, and Wright agrees to accept, a settlement of$191,619.89 as a gross
amount. This amount is inclusive of the following: $146,917.60 for salary and wages;
$57,672.68 for income taxes due to the Internal Revenue Service; $32,216.09 for FRS
contribution and deferred compensation; and $12,486.20 for additional fringe benefits
including, payout for medical, dental and life insurance. Payment shall be made by the
City as full and final settlement for this claim, as well as any claims the Wright might
have in the future against the City of Opa-Locka in connection with the case of James
Wright v. City of Opa-Locka, Case #08-62478 CA or any similar actions raising the from
similar claims. The settlement amounts are more specifically set forth in Exhibit "A".
Exhibit "A" is hereby incorporated herein and made a part of this Settlement Agreement.
City will issue a Form 1099 for this payment, and Wright shall be responsible for any
and all tax consequences arising from this payment.
Wright acknowledges and agrees that he is responsible for the payment of any and all
federal, state and/or local taxes imposed on him by any revenue agency that are or may
be owed taxes or other withholdings with respect to the monies paid to him hereunder.
Wright agrees to indemnify and hold City harmless from any claims, demands,
deficiencies, levies, assessments, executions, judgments or recoveries by any
governmental authority or other third party, asserted against City because of Wright's
failure to pay taxes, meet obligations or other withholdings. Wright further agrees to
hold City harmless as to costs, expenses or damages sustained by City as taxes,
attorneys' fees, deficiencies, levies, assessments, fines, penalties, interest or otherwise,
as a result of his failure to pay such taxes, other withholdings or meet obligations.
Wright represents that he is not relying in any way upon City or its counsel in this
regard.
3. Time of Payment of Settlement Sum/Additional Consideration. City shall
forward the Settlement Sum in the manner and form described in paragraph 2 to Wright,
in care of his attorney. Wright shall make all efforts to quickly return an executed
Agreement. City shall make all efforts to process the settlement following a commission
vote on the matter of payment.
4. Allocation . Wright acknowledges that the monies paid hereunder by City
to him is in full and complete settlement of his disputed claims against City and that
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payment of the Settlement Sum described above, along with the covenants and
promises contained in this Agreement, is considered to be the compromise by and
between the Parties to completely settle all claims as set out herein, whether or not
asserted by Wright, and that Wright is not otherwise entitled to said monies. Further,
each party is to bear its own attorney's fees and costs in this matter. The settlement
amount shall resolve and forever discharge the City of any obligations for future
performance under the Contract for Employment and all outstanding obligations have
been reduced to a monetary figure and is reflected in the amount to be paid under
paragraph 2 above.
5. Release and Settlement by Wright. In exchange for the good and
valuable consideration extended hereunder, Wright, on his own behalf and on behalf of
his heirs, executors, administrators, legal representatives, or others acting on his behalf,
hereby knowingly, willingly, and voluntarily settles, waives, releases and forever
discharges City and its commissioners, directors, officers, employees, agents,
managers, attorneys and any parent, subsidiary, affiliate or successor entity,
(collectively referred to as "Released Parties"), from any and all rights, claims, debts,
demands, actions, causes of action, suits, costs, damages (including back pay, bonus
payments, benefits, wages, front pay, liquidated damages, compensatory damages,
punitive damages, attorney's fees and litigation costs and interest available), right to
reinstatement, expenses, obligations and other liabilities whatsoever, and specifically
including actions to or for equitable or declaratory relief of any kind, whether or not
asserted by Wright. These rights and claims include, but are not limited to, rights and
claims arising under: the Fair Labor Standards Act of 1938, as amended; Title VII of the
Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991; the Civil Rights Act
of 1866, as amended; the Family and Medical Leave Act of 1993; the Employee
Retirement Income Security Act of 1974 (ERISA); the Health Insurance Portability and
Accountability Act of 1996 (HIPAA); the Consolidated Omnibus Budget Reconciliation
Act of 1985 (COBRA); the Equal Pay Act of 1963; the Rehabilitation Act of 1973, as
amended; the Americans With Disabilities Act of 1990; the National Labor Relations Act;
the Worker Adjustment and Retraining Notification Act; any federal or Florida False
Claims Act, including but not limited to, 31 U.S.C. § 3729, et seq., and § 68.081, et seq.,
Florida Statutes; under any employment law of the State of Florida, including but not
limited to, any wage law of the State of Florida (constitution, statute or common law);
the Florida Civil Rights Act of 1992, as amended, Florida's general labor regulations
(including but not limited to, Chapter 448, Florida Statutes, private whistleblower
retaliation claims, wage, retaliation and/or attorneys' fee claims); claims under Florida's
Public Whistleblower Act (Chapter 112, Fla. Stat.); and any other federal, state or local
statute, rule, ordinance or regulation dealing with employment, discrimination and/or
retaliation on any basis. In addition, Wright is unaware and has not complained that
City has violated any federal, state or local statute, rule, ordinance, regulation, or
company policy or procedure.
Wright also agrees that this release and waiver includes any or all rights or
claims for wrongful or retaliatory discharge, tortuous interference, and rights and claims
based on theories of contract (oral, written or implied), promissory estoppel or tort
(including but not limited to, negligence, defamation, etc.) and any or all rights or claims
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of any kind or description under any statute, regulation, law, ordinance or rule (federal,
state or local) or any other common law or equitable basis of action.
6. Release by City. The City herein releases Wright from all causes, causes
of action, liabilities, lawsuits, potential lawsuits, actions or claims of any type
whatsoever, whether in law or in equity arising out of or related to his employment in
connection with this matter.
7. Return of Property. The Parties shall return to each other, all property in
their possession, which properly belongs to the other upon execution and approval of
this Settlement Agreement, except as expressly set forth herein. The Parties agree
that if there is any property in the possession of either of the parties, which is required to
be retained for a period of time by the other party, then the party seeking to retain the
property shall provide a written statement detailing the specific facts and circumstances
for which the property is being retained. Property to be returned is outlined in Exhibit
"C„
8. Cooperation by Wright. Wright hereby agrees to cooperate with and
assist the City with any ongoing investigations related to activities which occurred during
the term of and within the scope of Wright's employment with the City. For the purpose
of this Settlement Agreement, Wright's obligation shall consist of, but not limited to,
attending depositions, and if necessary, testifying at trial. All reasonable expenses and
costs incurred by Wright in fulfilling this obligation shall be borne by the City.
9. Nondisparagement/Letter of Employment Confirmation. Wright agrees not
to make any disparaging comments about City, or any individual associated with City.
City agrees not to disparage Wright.
10. Coverage of Release and Future Damages. Wright acknowledges and
expressly agrees that the settlement, releases and waivers contained herein extend to
all claims of every nature and kind whatsoever, that he may have had against City,
known or unknown, suspected or unsuspected, past and present, whether or not raised
orally or in written form, through the date of this Agreement.
11. Voluntary Dismissal of Suit and Waiver of Future Claims. The parties
agree that upon the final payment in connection with this matter that counsel for the
Plaintiff shall deliver an Order for execution by the Court which dismisses the following
action, with prejudice, each party bearing its own costs and fees, and which reserves
jurisdiction to enforce the Agreement: In the Judicial Circuit in and for Miami-Dade
County, Florida, Case No. 08-62478 CA 6 or similar case style.
To the extent permitted by law, Wright waives the right to receive any further
compensation or damages other than set forth herein if he institutes other claim(s),
charge, action or legal proceeding against Released Parties, or if an agency or entity
sues or brings any action against Released Parties, on his behalf for claims through the
date of this Agreement. Nothing contained in this Agreement shall prevent either party
from filing a lawsuit for the purpose of enforcing its rights under this Agreement.
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12. No Pending Claims. Wright represents that he has no suits, claims,
charges, complaints or demands of any kind whatsoever currently pending against City
or any of the Released Parties with any local, state, or federal court or any
governmental, administrative, investigative, civil rights or other agency or board. Wright
further agrees that he will not initiate or institute any suit, claim, charge, action or legal
proceeding, or assist any others in any action (unless under subpoena or under court
order) against any of the Released Parties.
13. No Admission of Liability. It is expressly understood and agreed that this
Agreement shall not be construed as, or be deemed to be, evidence of an admission or
concession of any fault or liability or damage whatsoever on the part of any of the
parties hereto. Wright specifically acknowledges that, in entering into this Agreement
and City paying the consideration for this Agreement, Released Parties do not admit,
and expressly deny, liability of any kind to Wright. The Parties acknowledge that the
settlement is being entered into to avoid the cost and expense of further litigation.
14. Governing Law; Enforcement of Agreement; Attorneys' Fees and Costs.
This Agreement shall be governed by and enforced in accordance with the laws of the
State of Florida and any applicable federal law. The Florida courts shall have exclusive
jurisdiction over the enforcement of this Agreement. Venue shall lie exclusively in the
federal and state courts in Miami-Dade County, Florida. In the event an action is
instituted for breach of this Agreement, each party shall bear its own attorneys' fees and
costs, including attorneys' fees and costs on appeal.
15. Binding Effect. All of the terms, covenants, warranties and
representations contained herein shall be binding upon the Parties, and their respective
heirs, and successors, to the full extent permitted by law.
16. Construction.This Agreement shall not be construed more strongly against
any party regardless of who is responsible for its preparation. The Parties acknowledge
that each contributed and is equally responsible for the preparation of this Agreement.
17. Complete Agreement, Modification. This Agreement constitutes the entire
agreement between the Parties and supersedes all prior agreements, oral or otherwise,
with respect to the subject matter hereof. Neither this Agreement nor any term hereof
may be changed, waived, discharged or terminated orally, except by an instrument in
writing signed by all parties to this Agreement.
18. Headings, Gender and Singular. The headings in this Agreement are for
purposes of reference only and shall not limit or otherwise affect the meaning hereof.
Unless the context otherwise requires, references in this Agreement to any gender shall
be construed to include all other genders, references in the singular shall be construed
to include the plural, and references in the plural shall be construed to include the
singular.
19. Opportunity to Consider and Confer. Wright expressly warrants and
represents: that before executing this Agreement, he has fully informed himself of the
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terms, contents, conditions and effects thereof; that in making the settlement
represented by this Agreement, he has had the benefit of the advice of counsel of his
own choosing; that no promise or representation of any kind has been made to him,
except as is expressly stated in this Agreement; that he fully understands and is in
complete agreement with all terms of this Agreement; and, that he is entering into this
Agreement of his own free will. Wright further expressly warrants and represents that
he has relied solely and completely on his own judgment and the advice of his counsel
in making the settlement represented by this Agreement and he agrees that he has not
relied on any representation or statement not set forth in this Agreement. In addition,
Wright understands and agrees that the City's obligations under this paragraph shall not
be due until this Agreement has been agreed to and signed by both parties, and that
any revocation period after execution of this Agreement has expired.
20. Severability. If any clause or provision in this Agreement is found to be
void, invalid, or unenforceable, it shall be severed from the remaining provisions and
clauses that shall remain in full force and effect.
21. Facsimile Transmissions. Facsimile Transmission copies shall be
deemed sufficient to bind the parties to the terms of this Settlement Agreement.
22. Authority. Both Parties acknowledge and understand that this Agreement
must first obtain Commission approval before taking effect. The City intends to place
this Settlement Agreement as an Agenda item on January 28, 2009.
23. Signing of Agreement. The undersigned agrees that he has read this
document consisting of six (6) pages prior to signing, which reading and signing took
place in the presence of the undersigned witnesses.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above with the intent to be legally bound hereby.
JAMES WRIGHT
By:
James Wright
Dated:
CITY OF OPA-LOCKA
By:
Title:
Bryan K. Finnie, Interim City Manager
Dated:
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