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HomeMy Public PortalAbout09-7469 Nikeya Hill lawsuit Sponsored by: City Manager RESOLUTION NO. 09-7469 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF OPA-LOCKA, FLORIDA, AUTHORIZING THE CITY MANAGER TO SETTLE THE PENDING LAWSUIT BROUGHT BY NIKEYA HILL IN EXCHANGE FOR A RELEASE AGREEMENT WHEREAS,Nakeya Hill ("Hill") is an employee of the City of Opa-locka ("City"); and WHEREAS, Hill filed a charge of discrimination against City with the EEOC and a subsequent lawsuit on March 16, 2009 (Case No. 09-CV-20662-Gold-McAliley); and WHEREAS, the Parties have agreed to resolve the claims alleged on a non-admission on wrongdoing or liability basis; and WHERAS, in addition, the Parties have agreed to settle any and all claims of any kind arising out of Hill's employment with the City regarding said claim to avoid all further litigation; and WHEREAS, the parties desire to set forth herein their understandings and agreements in Exhibit"A"hereto attached. WHEREAS, the City Commission of the City of Opa-locka("City Commission") desires to authorize the City Manager to pay the negotiated settlement amounts and enter into a Settlement Agreement with Hill for full and final settlement of any and all claims arising out of the pending litigation action and in a form attached hereto as Exhibit "A." 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. Resolution No. 0 9-7 4 6 9 Section 2. The City Commission of the City of Opa-locka hereby authorizes the City Manager to settle the pending lawsuit brought against the City of Opa-Locka by Nakeya Hill and further authorizes the Release and Settlement Agreement consistent with the amounts attached hereto as Exhibit"A." Section 3. This resolution shall take effect immediately upon adoption. PASSED AND ADOPTED this 2 7 day of MAY , 2009. Aft 0 E' ► KELLEY YIR Attest: Approved as to form/111'4- orm 11' l� al,�. fficiency: e r, D or. Irby Bumadette Norris-Weeks City Clerks City Attorney Moved by: JOHNSON Seconded by: HOLMES Commission Vote: 5-0 Commissioner Tydus: YES Commissioner Holmes: YES Commissioner Johnson: YES Vice-Mayor Taylor: YES Mayor Kelley: YES SETTLEMENT AGREEMENT AND RELEASE THIS SETTLEMENT AGREEMENT AND RELEASE ("Agreement") is made and entered into as of the day of May, 2009, by and between Nikeya Hill , ("Hill"), and the City of Opa-Locka, ("City"). (Hill 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 Hill, 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, except for those related to Hill's rights to pension or retirement benefits and to use accrued or accumulated leave time, if applicable. 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 any 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 potential litigation. RECITALS: A. Hill is an employee of City; B. Hill filed a charge of discrimination against City with the EEOC (Charge No.: 510-2008-02522) dated and March 13, 2008, and a lawsuit March 16, 2009 (Case No. 09-CV-20662-Gold-McAliley); C. Hill's claims contained within her charge of discrimination and lawsuit have been denied by the Released Parties (as defined in paragraph 5); D. The Parties have agreed to resolve the claims alleged in the charge and filed in the lawsuit on a non-admission of wrongdoing or liability ; E. In addition, the Parties have agreed to settle any and all claims of any kind arising out of Hill's employment with the City in order to avoid all further litigation among the Parties, except for those related to Hill's rights to pension or retirement benefits and to use accrued or accumulated leave time, if applicable; and F. The Parties hereto desire to set forth herein their understandings and agreements in connection therewith. NOW THEREFORE, for and in consideration of the payments made by City to Hill and her attorneys of the amounts referenced below, 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 Hill agrees to accept, a settlement in the total gross amount of Sixty Thousand Dollars ($60,000.00) in full and final settlement of her claims, as well as any claims she might have, (the "Settlement Sum"), including attorneys' fees and costs to be paid as follows: a. $36,000 as wages less standard tax withholdings for a total of 22,690.65 to be paid to Hill in settlement of her grievance and any potential claims, except for attorneys' fees and costs. b. $24,000.00 to be paid to counsel for Hill, Amlong & Amlong, P.A., (FEIN 59-2333961), in full and final settlement of Hill's claims for attorneys' fees and costs. City will issue a Form 1099 for this payment, and Amlong & Amlong, P.A. shall be responsible for any and all tax consequences arising from this payment. 3. Time of Payment of Settlement Sum/Additional Consideration. City shall forward the Settlement Sum in the manner and form described in paragraphs 2 (a) and 2 (b) to Hill, in care of her attorney, no later than June 1, 2009, provided that Hill has executed this Agreement by that time. 4. Allocation. Hill acknowledges that the monies paid hereunder by City to her and to her legal counsel are in full and complete settlement of her disputed claims against City and that payment of the Settlement Sum, 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 Hill in the charge(s) of discrimination or otherwise, and that Hill is not otherwise entitled to said monies. 5. Release and Settlement by Hill. In exchange for the good and valuable consideration extended hereunder, Hill, on her own behalf and on behalf of her heirs, executors, administrators, legal representatives, or others acting on her behalf, hereby knowingly, willingly, and voluntarily settles, waives, releases and forever discharges City and its commissioners, directors, officers, employees, agents, managers, attorneys (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), 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 Hill in her charge(s) of discrimination or otherwise, except for those related to Hill's rights to pension or retirement benefits and to use accrued or accumulated leave time, if applicable. 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, except for those related to Hill's rights to pension or retirement benefits and to use accrued or accumulated leave time, if applicable. In addition, Hill is unaware and has not complained that City has violated any federal, state or local statute, rule, ordinance, regulation, or company policy or procedure (other than what Hill alleged in her charge(s) of discrimination). Hill also agrees that this release and waiver includes any or all rights or claims for tortious 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 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, except for those related to Hill's rights to pension or retirement benefits and to use accrued or accumulated leave time, if applicable. 6. Nondisparagement/Letter of Employment Confirmation. Hill agrees not to make any disparaging comments about City. City agrees not to disparage Hill. 7. Coverage of Release and Future Damages. Hill acknowledges and expressly agrees that the settlement, releases and waivers contained herein extend to all claims of every nature and kind whatsoever, that she may have had against City, known or unknown, suspected or unsuspected, past and present, whether or not raised in the charge(s) of discrimination, through the date of this Agreement, except for those related to Hill's rights to pension or retirement benefits and to use accrued or accumulated leave time, if applicable. 8. Waiver of Future Claims. To the extent permitted by law, Hill waives the right to receive any further compensation or damages other than set forth herein if she institutes a claim, charge, action or legal proceeding against Released Parties, or if an agency or entity sues or brings any action against Released Parties, on her 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. 9. No Pending Claims. Hill represents that she 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. Hill further agrees that she will not initiate or institute any suit, claim, charge, action or legal proceeding regarding any claims released in this Agreement against any of the Released Parties. The parties acknowledge that Hill has already been identified as a witness in pending action filed by Natalie Buissereth, and that Hill and Buissereth are represented by the same attorney. Hill agrees not to voluntarily seek to participate as a witness in any lawsuit or legal proceeding against the City, unless she is served with a subpoena. However, while Hill is under no duty to voluntarily cooperate in the actions filed by Natalie Buissereth, it will not be violation of this agreement for Hill to do so if requested by her attorneys, provided that Hill advises the attorneys that she is required to give immediate notice to the City of such participation and the attorneys agree to give such notice. 10. 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. Hill specifically acknowledges that, in entering into this Agreement and paying the consideration for this Agreement, Released Parties do not admit, and expressly deny, liability of any kind to Hill. The City specifically acknowledges that, in entering into this Agreement and releasing the City, Hill does not admit, and expressly deny, the validity of any defenses asserted by the City. The Parties acknowledge that the settlement is being entered into to avoid the cost and expense of future litigation. 11. 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 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. 12. 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. 13. 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. 14. 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. 15. 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. 16. Opportunity to Consider and Confer. Hill expressly warrants and represents: that before executing this Agreement, she has fully informed herself of the terms, contents, conditions and effects thereof; that in making the settlement represented by this Agreement, she has had the benefit of the advice of counsel of her own choosing; that no promise or representation of any kind has been made to her, except as is expressly stated in this Agreement; that she fully understands and is in complete agreement with all the terms of this Agreement; and, that she is entering into this Agreement of her own free will. Hill further expressly warrants and represents that she has relied solely and completely on her own judgment and the advice of her counsel in making the settlement represented by this Agreement and she agrees that she has not relied on any representation or statement not set forth in this Agreement. 17. 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. 18. Signing of Agreement. The undersigned agrees that she has read this document consisting of five (5) 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. NIKEYA HILL Witness By: Nikeya Hill Witness Dated: CITY OF OPA-LOCKA By: Title: Dated: \812003\5-#276273 vl