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.
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0 E' ► KELLEY
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Attest: Approved as to form/111'4-
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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:
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