HomeMy Public PortalAbout19-9634 Retroactively Authorizing the Brown Law Group to Defend Barry E Mukamal for Stephen Shiver Sponsored by: The City Attorney's Office
RESOLUTION NO. 19-9634
A RESOLUTION OF THE CITY COMMISSION OF THE
CITY OF OPA-LOCKA, FLORIDA, RETROACTIVELY
AUTHORIZING THE BROWN LAW GROUP, LLC, TO
DEFEND BARRY E. MUKAMAL, AS CHAPTER 7 TRUSTEE
OF THE ESTATE OF ROY STEPHEN SHIVER., VS. CITY OF
OPA-LOCKA, FLORIDA, CASE NUMBER 2018-028275
INVOLVING BREACH OF CONTRACT; PROVIDING FOR
INCORPORATION OF RECITALS; PROVIDING FOR AN
EFFECTIVE DATE.
WHEREAS, the City has been named as a defendant in the above-referenced
lawsuit; and
WHEREAS, The City must defend itself against the allegations contained
within the lawsuit; and
WHEREAS, The City Commission believes that it is in the best interest of the
City to authorize The Brown Law Group, LLC, to represent the City in defense of the
Barry E. Mukamal, as Chapter 7 Trustee of the Estate of Roy Stephen Shiver vs. the
City of Opa-Locka (Case No.:2018-028275-CA-01) lawsuit, including reaching
settlement terms, if possible.
NOW THEREFORE, BE IT RESOLVED THAT THE CITY COMMISSION
OF THE CITY OF OPA-LOCKA, FLORIDA:
Section 1. The recitals to the preamble herein are incorporated by reference;
Section 2. The City Attorney is hereby authorized to commence defense of
Barry E. Mukamal, as Chapter 7 Trustee of the Estate of Roy Stephen Shiver
vs. the City of Opa-locka, on behalf of the City. The fees in this matter shall be
capped at $5,000.00. In the event the fees exceed the aforementioned cap, City
Commission approval is required.
Resolution No. 19-9634
Section 3. This Resolution shall take effect immediately upon adoption, and
is subject to the approval of the Governor of the State of Florida or his designee.
PASSED AND ADOPTED this 27th day of March, 2019.
Matthew A. Pigatt
Mayor
Attest to: Approved as to form and legal sufficiency:
J .nna Flores Vincent T. Brown, Esq.
City Clerk The Brown Law Group, LLC
City Attorney
Moved by: COMMISSIONER KELLEY
Seconded by: COMMISSIONER BURKE
Commissioner Vote: 5-0
Commissioner Kelley: YES
Commissioner Bass: YES
Commissioner Burke: YES
Vice Mayor Davis: YES
Mayor Pigatt: YES
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HARVEY RIIVIN
j`s. ""
MIAMI-DADE COUNTY,FLORIDA ' '
Miami-Dade County Civil, Family and Probate Courts
Online System
N Back to Search
BARRY E MUKAMAL VS GREAT CITY OF OPA-LOCKA (THE)
Local Case Number: 2018-028275-CA-01
Filing Date: 08/20/2018
State Case Number: 132018CA028275000001
Case Type: Contract& Indebtedness
Consolidated Case No.: N/A
Judicial Section: CA10
Case Status: OPEN
its Parties Number of Parties:Ptis: 2
C♦Export to
Party Other
Description Party Name Attorney Information Attorney(s)
https://www2.miami-dadeclerk.com/ocs/Search.aspx 1/5
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Other
ther
Description Party Name Attorney Information Attorney(s)
Plaintiff MUKAMAL, BARRY E B#: (Bar Numbery144444
N;•.„(Attorney Name)Silverman, Marc
A
Defendant Great City of Opa-Locka B#: Bar Number 710105
(The) IV;:.:.(Attorney Name)Michael R Piper
4k, Hearing Details Number of Hearing: 1
C♦Export to■
Hearing Date Hearing Time Hearing Code Description
02/26/2019 9:00AM 5MIN 5 Minute Motion Calendar
1 Dockets Dockets Retrieved: 25
C♦Export to ■
Docket Event
Number Date Book/Page Entry Type Comments
23 02/28/2019 Notice of Event
Service of
Process
I �
22 02/26/2019 Order Event AMENDED COMPLAINT
Granting
Motion to
Leave to
Amend
21 02/26/2019 Order of Event FOR DEFENDANT CITY OF
Withdrawal OPA-LOCKA GRANTED
as Attorney
of Record
02/26/2019 5 Minute Hearing
Motion
Calendar
https://www2.miami-dadeclerk.com/ocs/Search.aspx 2/5
3/20/2019 OCS Search
1 Docket Event
Number Date Book/Page Entry Type Comments
I
20 02/13/2019 Notice of Event 02/26/2019.
Hearing-
19 02/07/2019 Motion for Event TO FILE AMENDED
Leave COMPLAINT
I I; i 18 01/25/2019 Notice of Event 02/26/2019
Hearing-
,
` 1 17 11/20/2018 Response Event
to Request
for
Production
a ` 1 16 10/26/2018 Motion to Event AS COUNSEL
Withdraw
. ` 15 10/26/2018 Motion for Event
Extension
of Time
laji 14 09/24/2018 Motion to Event
Strike
`l 13 09/21/2018 Answer Event Parties: Michael R Piper; Great
City of Opa-Locka (The) I
I `i 12 09/21/2018 Notice of Event
Appearance
11 09/21/2018 Default Event Parties: Great City of Opa-Locka
(The)
P ] 10 09/14/2018 Motion for Event
Default
w `
l 9 09/13/2018 Service Event
Returned
7 08/29/2018 Service Event
Returned
61 8 08/28/2018 Service Event
Returned
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Docket Event
Number Date Book/Page Entry Type Comments
6 08/23/2018 Receipt: Event RECEIPT#:3470162 AMT
PAID:$10.00
NAME:SILVERMAN, MARC A
7805 SW 6TH CT PLANTATION
FL 33324-3203 COMMENT:
ALLOCATION CODE
QUANTITY UNIT AMOUNT
3139-SUMMONS ISSUE FEE 1
$10.00 $10.00 TENDER
TYPE:E-FILING ACH TENDER
AMT:$10.00 RECEIP
I �
08/22/2018 20 Day Service
Summons
Issued
5 08/22/2018 ESummons Event Parties: Great City of Opa-Locka
20 Day (The)
Issued
3 08/22/2018 Receipt: Event RECEIPT#:3420194 AMT
PAID:$401.00
NAME:SILVERMAN, MARC A
7805 SW 6TH CT PLANTATION
FL 33324-3203 COMMENT:
ALLOCATION CODE
QUANTITY UNIT AMOUNT
3100-CIRCUIT FILING FEE 1
$401.00 $401.00 TENDER
TYPE:E-FILING ACH TENDER
AMT:$401.00 REC
I 1
I ` 4 08/21/2018 (M) 20 Day Event
(C)
Summons
(Sub)
Received
ri 2 08/20/2018 Complaint Event
1 08/20/2018 Civil Cover Event
i t
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44 Back to Search
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IN THE CIRCUIT COURT OF THE 11TH
JUDICIAL CIRCUIT IN AND FOR
MIAMI-DADE COUNTY, FLORIDA
CASE NO.:
BARRY E. MUKAMAL, as Chapter uHA
7 Trustee of the Bankruptcy Estate
of Roy Stephen Shiver, Jr.,
Plaintiff,
vs.
THE GREAT CITY OF OPA-LOCKA,
FLORIDA, a municipal corporation,
Defendant.
AMENDED COMPLAINT
Plaintiff, BARRY E. MUKAMAL, as Chapter 7 Trustee of the Bankruptcy Estate of
Roy Steven Shiver, Jr. ("Plaintiff') by and through his undersigned counsel, sues the
Defendant, THE GREAT CITY OF OPA-LOCKA, FLORIDA, a municipal corporation
("Defendant") and states:
GENERAL ALLEGATIONS
1. This is an action for breach of contract and for damages in excess of
$15,000.00, exclusive of attorneys' fees, costs, and/or interest within this Court's subject
matter jurisdiction.
2. Plaintiff, BARRY E. MUKAMAL, as Chapter 7 Trustee of the Bankruptcy
Estate of Roy Steven Shiver, Jr., is the duly appointed and acting Chapter 7 trustee in the
pending bankruptcy proceedings related to Roy Stephen Shiver, Jr. ("Shiver"), to wit: the
Chapter 7 bankruptcy case pending before the United States Bankruptcy Court for the
1
Southern District of Florida, Miami Division, styled In re Roy Stephen Shiver, Jr., Debtor,
Case No.: 17-24922-RAM (the "Bankruptcy Proceedings"), and is sui juris in all respects.
As bankruptcy trustee, the Plaintiff is entitled as a matter of bankruptcy law to pursue for
the benefit of Shiver's creditors any and all claims and causes of action held by Shiver
when his bankruptcy case was commenced on December 15, 2017. See, e.g., 11 U.S.C.
§§ 541&704.
3. Defendant, THE GREAT CITY OF OPA-LOCKA, FLORIDA, as all times
material hereto is and was a municipal corporation and political subdivision of the State
of Florida, and is sui juris in all respects.
4. All conditions precedent to the bringing of this action have been met, have
occurred, or have been waived.
5. All transactions and/or occurrences giving rise to this action arose and
transpired in Miami-Dade County, Florida, and as such, venue is proper in this court
pursuant to Chapter 47, Fla. Stat.
FACTUAL ALLEGATIONS,
6. Shiver was employed by the Defendant in the position of City Manager
pursuant to that certain Employment Agreement Between the Great City of Opa-Locka,
Florida and Stephen Roy Shiver, City Manager dated September 2, 2015 (the
"Employment Agreement"), which had a definite term of employment as set forth in
paragraph 1 thereof, to wit: an initial term of thirty (30) months (from September 2, 2015
through February 28, 2018). A true copy of the Employment Agreement is attached
hereto as Exhibit "A" and fully incorporated herein by this reference.
2
7. Pursuant to the terms of the Employment Agreement, in the event that the
Defendant terminated Shiver prior to the end of his initial term (or prior to the end of any
additional term as contemplated by paragraph 1B of the Employment Agreement), he was
to be paid "all compensation that shall include salary, all accrued benefits including sick
and vacation days, and any unpaid car or expense allowances all as permitted by Florida
Statutes Section 215.425, which provides that severance pay provided may not exceed
an amount greater than twenty (20) weeks of compensation." Thus, pursuant to the
express terms of the Employment Agreement, upon termination, Shiver was entitled to
be paid all salary that would have come due under the 30 month term of the Employment
Agreement set forth in paragraph 1A thereof.
8. Apparently, almost immediately after Shiver assumed the position of City
Manager, he identified serious issues related to the financial condition of the Defendant,
including numerous and significant unpaid invoices, and other financial inconsistencies in
the Defendant's finances and informed the Defendant's duly elected officials of same, as
well as Shiver's obligation to report the financial issues to Florida's Governor pursuant to
§218.503, Fla. Stat., and announced his findings at separate budget hearings of the
Defendant to no avail.
9. Thereafter on or about October 22, 2015, Shiver sent Florida's Governor,
Rick Scott, a detailed letter(the"Letter")pursuant to§218.503, Fla. Stat., raising the same
financial concerns that were apparently revealed to him after settling into his position with
the Defendant as its City Manager. A true copy of the October 22, 2015 Letter is attached
hereto as Exhibit"B" and fully incorporated herein by this reference. In the Letter, Shiver
3
detailed the Defendant's "challenging financial condition," as well as some of the positive
changes that were being made to remedy the problems. Shiver's self-stated justifications
for the Letter are set forth therein and fully incorporated herein.
10. In response to the Letter, Defendant's Mayor, Myra Taylor, informed Shiver
that she and the Defendant's Commissioners had gotten together and were going to
"force"Shiver's resignation in retaliation for Shiver's sending the Letter to Governor Scott.
In response, Shiver pointed out that the "get together" described by Mayor Taylor was an
illegally held meeting "in the shade," in violation of Florida's Sunshine Law in and of itself.
11. Undeterred by the illegality of the meeting, however, Mayor Taylor, upon
information and belief, directed Commissioner Santiago (of Defendant's City
Commission) to place an agenda item on the October 27, 2015 Special Commission
Meeting Agenda (a true copy of said Agenda which is attached hereto as Exhibit"C" and
fully incorporated herein by this reference), and more particularly, Agenda items 6(a) and
6(b), which stated:
6(a) A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF
OPA-LOCKA, FLORIDA, TERMINATING THE EMPLOYMENT WITH ROY
STEPHEN SHIVER AS CITY MANAGER OF THE CITY OF OPA-LOCKA,
FLORIDA: PROVIDING FOR INCORPORATION OF RECITALS,
PROVIDING FOR AN EFFECTIVE DATE; and
6(b) A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF
OPA-LOCKA, FLORIDA, APPOINTING AN INTERIM CITY MANAGER
EFFECTIVE IMMEDIATELY, PROVIDING FOR INCORPORATION OF
RECITALS, PROVIDING FOR AN EFFECTIVE DATE
12. Apparently, during the Special Meeting on October 27, 2015, no valid
reason for the termination of Shiver's Employment Agreement was articulated, and
certainly, no event of "cause" was articulated. The matter was tabled and the issue of
4
Shiver's termination was brought up at the November 24, 2015 Special Commission
Meeting. After Mayor Taylor articulated that, due to the sending of the Letter;she could
no longer work with Shiver, the Commission voted to terminate the Employment
Agreement by a 3-1 margin. A true copy of the minutes from the November 24, 2015
Special Commission Meeting reflecting the resolution to terminate Shiver is attached
hereto as Exhibit"D" and fully incorporated herein by this reference.
13. While the November 24, 2015 termination of Shiver was accomplished by
the Defendant, it is clear that it was not justified in accordance with the terms of the
Employment Agreement, which provides that the Employment Agreement "may only be
terminated if the City Manager abandon [sic] his job or is formally charged for criminal
conduct." Cleary, this was not the basis for Defendant's termination of the Employment
Agreement, and as such, Defendant's termination thereof was a material breach of the
Employment Agreement. Thus, Shiver was terminated without cause.
14. Pursuant to the terms of the Employment Agreement, Shiver was/is entitled
to be paid the compensation due him under the Employment Agreement as set forth in
Sections 1A, 3A, and severance pay in accordance with paragraph 10 of the Employment
Agreement, to wit: the remainder of the compensation due to him for the remaining term
of the Employment Agreement, including, all of his bargained for compensation payable
to Shiver is set forth in Sections 3 through 8 of the Employment Agreement, to wit: (a)
annual base salary in the amount of $150,000.00; (b) an annual contribution of twelve
percent(12%) of Shiver's base salary into Defendant's ICMA-RC Retirement Plan; (c)the
Defendant's executive insurance package for himself and his dependent family members,
5
or at Shiver's election in lieu of receiving said benefits an additional $600.00 per month;
(d) payments for Shiver's disability insurance; (e) the premiums on a term life insurance
policy with a benefit of two (2) times Shiver's base salary; and (f) all other fringe benefits,
including, but not limited to accrued holiday, annual and sick leave.
15. At the time of Shiver's termination from the Defendant, there were 26
months, 8 days remaining in the initial term of the Employment Agreement. Thus, the
remaining compensation due under the definitive initial term of the Employment
Agreement was the amount of$328,287.67.
16. As a direct and proximate result of the Defendant's breach of the
Employment Agreement, Shiver suffered damages in excess of$15,000.00, exclusive of
attorney's fees, costs, and/or interest.
17. To the extent that the Court determines that in addition to the
aforementioned sums, Shiver was/is entitled to any additional amounts as "severance
pay", Shiver is additionally entitled to twenty(20)weeks of"severance pay" (to the extent
not already provided to Shiver in the normal course of Defendant's business) as provided
for in§215.425(4)(d), Fla. Stat.,which provides, in pertinent part,that the term"severance
pay" as referenced in the Employment Agreement, means the actual or constructive
compensation, including salary, benefits, or perquisites, for employment services yet to
be rendered which is provided to an employee who has recently been or is about to be
terminated." N(/'
6
29
18. Plaintiff has engaged the undersigned attorneys to represent him in this
action and has agreed to pay them a reasonable fee for their services and to reimburse
them for all costs expended in furtherance of said efforts.
19. In addition to the aforementioned compensation, the Employment
Agreement provides in Section 9 A(2) thereof that, in the event of litigation to enforce the
terms of the Employment Agreement, the prevailing party shall be entitled to recover its
attorney's fees and costs from the non-prevailing party.
WHEREFORE, Plaintiff, BARRY E. MUKAMAL, as Chapter 7 Trustee of the
Bankruptcy Estate of Roy Steven Shiver prays that this Court enter a final judgment in
favor of Plaintiff and against the Defendant, THE GREAT CITY OF OPA-LOCKA,
FLORIDA, a municipal corporation:
a. finding that Defendant materially breached the Employment Agreement;
b. finding that Defendant's breach(es) of the Employment Agreement directly
and proximately caused damage to Shiver and Plaintiff, as his successor,
and that as the result thereof, Plaintiff is entitled to recover from Defendant
the amounts identified in paragraphs 15-17 above, which are amounts
within this Court's subject matter jurisdiction;
c. Awarding Plaintiff his reasonable attorney's fees and costs in connection
with the prosecution of this action; and
e. Granting such other relief as the Court deems appropriate and just under
the circumstances.
7
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I have sent a true and correct copy of the foregoing to
via email/e-filing to all of the persons identified on the attached service list, this St day
of January, 2019.
FRANK, WEINBERG & BLACK, P.L.
Counsel for Defendant
7805 S.W. 6th Court
Plantation, FL 33324
Telephone: (954)474-8000
Fax: (954)474-9850
By: /s/ Marc A. Silverman
Marc A. Silverman, Esq.
msilverma nafwblaw.net
Florida Bar No.: 144444
8
BARRY E. MUKAMAL. as Chanter 7 Trustee of the Bankruptcy Estate of Roy,
Stephen Shiver vs. THE GREAT CITY OF OPA-LOCKA. FLORIDA. a municipal
corporation
Case No.: 2018-028275-CA-01
SERVICE LIST
Michael R. Piper, Esq.
JOHNSON, ANSELMO, MURDOCH,
BURKE, PIPER & HOCHMAN, PA
Attorneys for Defendant
2455 E. Sunrise Boulevard, Suite 1000
Fort Lauderdale, Florida 33304
Telephone: (954) 463-0100
Facsimile: (954) 463-2444
piper(r jambg.com
semexant @jambg.com
9
Brian Becher Andrew D.Levy
J;I B.Berkman Hotit N.bottenberc
David W.Black Steven W.Marcus
Edward B.Deutsch B LAC Joel N".McTague
Steven W.Deutsch F RAN K . \WWT E I N B E RG + B LAC K Constantina A.Mirabiie
Steven C.Elkin Harry P.Nlirab(ie
Neil G.Frank Randy J.Nathan
E.J.Generotti Marc A.Silverman
Levan G.Greenman Robert T.Slat pit
Bruce Hurwitz Maria P Spiliopoulos
Michael A.Kammer David Neal St(rn
M;chael Kassower Leanne B.Wagr'.er
Steven A.Weinberg
January 21, 2019
VIA EMAIL: piper @jambg.com
Michael R. Piper, Esq.
JOHNSON, ANSELMO, MURDOCH,
BURKE, PIPER & HOCHMAN, PA
2455 E. Sunrise Boulevard
Suite 1000
Fort Lauderdale, Florida 33304
RE: Barry E. Mukamal as Chapter 7 Trustee of Bankruptcy Estate of Steven
Roy Shiver, Jr. vs. The Great City of Opa-Locka, Florida
Case Number.: 2018-028275-CA-01
Motion for Leave to Amend Complaint & Proposed Amended Complaint
Our File No.: 17253.000
Dear Mike:
Enclosed herewith please find a copy of the Amended Complaint that I discussed with
you about 2 weeks ago with regard to the above-referenced case. As we discussed, the
Employment Agreement Between the Great City of Opa-Locka, Florida and Stephen Ray
Shiver (the "Agreement"), at the time of its termination on November 24, 2015 there was
26 months 8 days remaining in his term pursuant to the Agreement: as such Mr. Shiver
was entitled to Compensation for that same period. The Compensation necessary under
the term of the Agreement does not represent "severance" that would be covered by
Section 215.425 (4)(d), Florida Statues and equals the sum of $328,287.67.
As I indicated to you, before I file the Amended Complaint I would make a demand upon
your client to see if the City was interested in reaching a resolution of this matter without
further litigation. As such, demand is hereby made for resolution of this matter in the
aforementioned sum, $328,287.67 which is the full amount of the Compensation due to
Mr. Shiver under the Agreement. Should we be required to continue with the litigation, the
subject Agreement provides for the recovery of attorneys' fees and costs in connection
with any litigation.
7805 S.W. 6th Court • Plantation, FL 33324
Phone: 954.474.8000 • Fax: 954.474.9850 • www.fwblaw.net
Boca Raton • Daytona Beach • Plantation
Filing # 76699778 E-Filed 08/20/2018 03:21:41 PM
IN THE CIRCUIT COURT OF THE 11T"
JUDICIAL CIRCUIT IN AND FOR
MIAMI-DADE COUNTY, FLORIDA
CASE NO.:
BARRY E. MUKAMAL, as Chapter
7 Trustee of the Bankruptcy Estate
of Roy Stephen Shiver, Jr.,
Plaintiff,
vs. •
THE GREAT CITY OF OPA-LOCKA,
FLORIDA, a municipal corporation,
Defendant.
I
COMPLAINT
Plaintiff, BARRY E. MUKAMAL, as Chapter 7 Trustee of the Bankruptcy Estate of
Roy Steven Shiver, Jr. ("Plaintiff") by and through his undersigned counsel, sues the
Defendant, THE GREAT CITY OF OPA-LOCKA, FLORIDA, a municipal corporation
("Defendant') and states:
GENERAL ALLEGATIONS
1. This is an action for breach of contract and for damages in excess of
$15,000.00, exclusive of attorneys' fees, costs, and/or interest within this Court's subject
matter jurisdiction.
2. Plaintiff, BARRY E. MUKAMAL, as Chapter 7 Trustee of the Bankruptcy
Estate of Roy Steven Shiver, Jr., is the duly appointed and acting Chapter 7 trustee in the
pending bankruptcy proceedings related to Roy Stephen Shiver, Jr. ("Shiver"),to wit: the
Chapter 7 bankruptcy case pending before the United States Bankruptcy Court for the
1
Southern District of Florida, Miami Division, styled In re Roy Stephen Shiver, Jr., Debtor,
Case No.: 17-24922-RAM (the"Bankruptcy Proceedings"), and is•sui juris in all respects.
As bankruptcy trustee, the Plaintiff is entitled as a matter of bankruptcy law to pursue for
the benefit of Shiver's creditors any and all claims and causes of action held by Shiver
when his bankruptcy case was commenced on December 15,2017. See, e.g., 11 U.S.C.
§§ 541&704.
3. Defendant, THE GREAT CITY OF OPA-LOCKA, FLORIDA, as all times
material hereto is and was a municipal corporation and political subdivision of the State
of Florida, and is sui furls in all respects.
4. All conditions precedent to the bringing of this action have been met, have
occurred, or have been waived.
5. AU transactions and/or occurrences giving rise to this action arose and
transpired in Miami-Dade County, Florida, and as such, venue is proper in this court
pursuant to Chapter 47, Fla. Ste.
FACTUAL ALLEGATIONS
6. Shiver was employed by the Defendant in the position of City Manager
pursuant to that certain Employment Agreement Between the Great City of Opa-Locka,
Florida and Stephen Roy Shiver, City Manager dated September 2, 2015 (the
"Employment Agreement"), which had an initial term of thirty (30) months (from
September 2, 2015 through February 28, 2018). A true copy of the Employment
Agreement is attached hereto as Exhibit "A" and fully incorporated herein by this
reference.
2
7. Pursuant to the terms of the Employment Agreement, in the event that the
Defendant terminated Shiver, he was to be paid "ail compensation that shall include
salary, all accrued benefits including sick and vacation days, and any unpaid car or
expense allowances all as permitted by Florida Statutes Section 215.425,which provides
that severance pay provided may not exceed an amount greater than twenty (20) weeks
of compensation."
8. Apparently, almost immediately after Shiver assumed the position of City
Manager, he identified serious issues related to the financial condition of the Defendant,
including numerous and significant unpaid invoices, and other financial inconsistencies in
the Defendant's finances and informed the Defendant's duly elected officials of same, as
well as Shiver's obligation to report the financial issues to Florida's Governor pursuant to
§218.503, Fla. Stat., and announced his findings at separate budget hearings of the
Defendant to no avail.
9. Thereafter on or about October 22, 2015, Shiver sent Florida's Governor,
Rick Scott, a detailed letter(the"Letter")pursuant to§218.503, Fla. Stat., raising the same
financial concerns that were apparently revealed to him after settling into his position with
the Defendant as its City Manager. A true copy of the October 22, 2015 Letter is attached
hereto as Exhibit"B" and fully incorporated herein by this reference. In the Letter, Shiver
detailed the Defendant's "challenging financial condition," as well as some of the positive
changes that were being made to remedy the problems. Shiver's self-stated justifications
for the Letter are set forth therein and fully incorporated herein.
3
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10. In response to the Letter, Defendant's Mayor, Myra Taylor, informed Shiver
that she and the Defendant's Commissioners had gotten together and were going to
"force"Shiver's resignation in retaliation for Shiver's sending the Letter to Governor Scott.
In response, Shiver pointed out that the"get together"described by Mayor Taylor was an
illegally held meeting In the shade," in violation of Florida's Sunshine Law in and of itself.
11. Undeterred by the illegality of the meeting, however, Mayor Taylor, upon
information and belief, directed Commissioner Santiago (of Defendant's City
Commission) to place an agenda item on the October 27, 2015 Special Commission
Meeting Agenda (a true copy of said Agenda which is attached hereto as Exhibit"C" and
fully incorporated herein by this reference), and more particularly, Agenda items 6(a) and
6(b), which stated:
6(a) A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF
OPA LOCKA, FLORIDA, TERMINATING THE EMPLOYMENT WITH ROY
STEPHEN SHIVER AS CITY MANAGER OF THE CITY OF OPA-LOCKA,
FLORIDA: PROVIDING FOR INCORPORATION OF RECITALS,
PROVIDING FOR AN EFFECTIVE DATE; and
6(b) A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF
OPA-LOCKA, FLORIDA, APPOINTING AN INTERIM CITY MANAGER
EFFECTIVE IMMEDIATELY, PROVIDING FOR INCORPORATION OF
RECITALS, PROVIDING FOR AN EFFECTIVE DATE
12. Apparently, during the Special Meeting on October 27, 2015, no valid
reason for the termination of Shiver's Employment Agreement was articulated, and
certainly, no event of "cause" was articulated. The matter was tabled and the issue of
Shiver's termination was brought up at the November 24, 2015 Special Commission
Meeting. After Mayor Taylor articulated that, due to the sending of the Letter, she could
no longer work with Shiver, the Commission voted to terminate the Employment
4
Agreement by a 3-1 margin. A true copy of the minutes from the November 24, 2015
Special Commission Meeting reflecting the resolution to terminate Shiver is attached
hereto as Exhibit"D" and fully incorporated herein by this reference.
13. While the November 24, 2015 termination of Shiver was accomplished by
the Defendant, it is clear that it was not justified in accordance with the terms of the
Employment Agreement, which provides that the Employment Agreement "may only be
terminated if the City Manager abandon [sic] his job or is formally charged for criminal
conduct." Cleary, this was not the basis for Defendant's termination of the Employment
Agreement, and as such, Defendant's termination thereof was a material breach of the
Employment Agreement.
14. As a direct and proximate result of the Defendant's breach of the
Employment Agreement, Shiver suffered damages in excess of$15,000.00, exclusive of
attorney's fees, costs, and/or interest.
15. Pursuant to the terms of the Employment Agreement, Shiver was/is
entitled to be paid the compensation due him under the Employment Agreement as set
forth in Sections 1(a), 3-8, and 10 of the Employment Agreement, to wit: the remainder
of the compensation due to him for the remaining term of the Employment Agreement,
including, all of his bargained for compensation payable to Shiver is set forth in Sections
3 through 8 of the Employment Agreement, to wit: (a) annual base salary in the amount
of$150,000.00; (b)an annual contribution of twelve percent(12%)of Shiver's base salary
into Defendant's ICMA-RC Retirement Plan; (c) the Defendant's executive insurance
package for himself and his dependent family members, or at Shiver's election in lieu of
5
receiving said benefits an additional $600.00 per month; (d) payments for Shiver's
disability insurance; (e)the premiums on a term life insurance policy with a benefit of two
(2)times Shiver's base salary; and (f) all other fringe benefits, including, but not limited to
accrued holiday, annual and sick leave.
16. To the extent that the Court determines that Shiver's remaining
compensation is"severance pay"within the Defendant's rights, given the fact that Shiver
was not terminated for any of the permitted reasons, at the very least, Shiver is entitled
to twenty (20) weeks of "severance pay," as provided for in §215.425(4)(d), Fla. Stat.,
which provides, in pertinent part, that the term "severance pay" as referenced in the
Employment Agreement, means the actual or constructive compensation, including
salary, benefits, or perquisites, for employment services yet to be rendered which is
provided to an employee who has recently been or is about to be terminated."
17. Plaintiff has engaged the undersigned attorneys to represent him in this
action and has agreed to pay them a reasonable fee for their services and to reimburse
them for all costs expended in furtherance of said efforts.
18. In addition to the aforementioned compensation, the Employment
Agreement provides in Section 9 A(2)thereof that, in the event of litigation to enforce the
terms of the Employment Agreement, the prevailing party shall be entitled to recover its
attorney's fees and costs from the non-prevailing party.
WHEREFORE, Plaintiff, BARRY E. MUKAMAL, as Chapter 7 Trustee of the
Bankruptcy Estate of Roy Steven Shiver prays that this Court enter a final judgment in
6
favor of Plaintiff and against the Defendant, THE GREAT CITY OF OPA-LOCKA,
FLORIDA, a municipal corporation:
a. finding that Defendant materially breached the Employment Agreement;
b. finding that Defendant's breach(es) of the Employment Agreement directly
and proximately caused damage to Shiver and Plaintiff, as his successor,
and that as the result thereof, Plaintiff is entitled to recover from Defendant
an amount within this Court's subject matter jurisdiction;
c. Awarding Plaintiff his reasonable attorney's fees and costs in connection
with the prosecution of this action; and
e. Granting such other relief as the Court deems appropriate and just under
the circumstances.
Respectfully Submitted thisEday of August, 2018.
FRANK, WEINBERG & BLACK, P.L.
Attorneys for Plaintiff
7805 S.W. 6th Court
Plantation, FL 33324
Telephone: (954) 474-8000
Facsimile: (954) 474-9850
By: 1111°►
M A 'C A. SILVERMAN
' FI . Bar No. 144444
7
EMPLOYMENT' ENT AGREEME T BETWEM
The Great City f °s4ed ,Moeda AND Ro y S '. sera LSiti v ;City Manage
This Ant,. made and entered iiito thh September Z.1,2015, h and
,r
betweim The Omit City of °ps-lock-a, Florida, a na rriicipai €orpot aio i
1+, eoikfte' called "City") and Roy Stephen Shiver, €he "1aw:tw; caned "City
Sf do It `feral
A. ' 'ht' initial Term of this A et A be for a ptt d of thirty y (0) months from
Se ternb t 2,2015 *February 28,2018. Ater the expiration �f to Inita; earn,
b, At ter > the �c
;Ls 1 h the '<; r h to renew the e s iC ^g s :'•,t for an additional
bfi✓City& ?%£have�.3°� {,1£.:.£<$ L;t t :�'�i the� "�t.c C�,R L..'3�.:� �'£�F�a}s:.�s k4a
:tkeiye(U)ntcrab period.
g. In the event that the City MAVa e:Y is terminated, as defined in section 9
of this Agreement, Ea City N4frtuuz r shall . entitled to ail ic rnpe �Ati Z
that shall "mch da salary, ail accrued b a ttt s including sick vwealion
• 1 , { �nG�FVLrti...,r.:x :,�
y unpaid C,is. ;?i X %•iL:t: v.}. 1�,'t�x! permitted by ;a
Florida Statutes Se:c. ion 215.425, which provides that. se' ei"ance.. pay
pr.>»• C✓wu.y may not exceed $» amount gg�<-h.ter than twenty (2 0) weeks of
c>`.`.•a %ye3asation,
Seetie 2: Diaita and Authority
.,././„ The City agrees to employ Roy Stephen, :',31/beer as City Manager Co
perform t .• ftinctions and di.t? s specified in the Charter for the
. perform City of f
t �:-�3C�° c3�to ra�er legally 3er : � kf !CA �i�i duties w,:d
ffsi:et$Ens WlthOUt in.lcrferer* e.
3 ;tea City Manager l t�^ss n L' the chief dminS L (the fi :" r r f the City and shall
.S.b \.+x � .l T' :YiC%Cn�y...w t� 4 �i/ L.Zrl�'� I/. A.Ae 4.Ai:�.Ir ?J .•743 itl� 41 i.t�.- and •iiM
faithfully f t is as be the description_ton. set
.. ..:a�F ,tij �TVO I.l}.t•.1i.3 the duties .�`. FC'y.�i'F.3��3.w�� in di� job .,. $,-L a�:ti,..Aa c.ra .7'.+A
forth is <h/-e City's charter and/or ordinances and as may be lawfully
assigned by the i1+i.ty and shall comply with all lawful governing body
directives, county, state: and federal. i aw, City policies, rules
and
oruira,. a s as they ex i Ji or may h\rer yy r be amended,
C.it shall. be the duty of the City ty 1v1231.49 to employ, dsitcc , rssign,
reassign, evaluate, and to accept resignations of all of the emplo3rees of
the City under his supervision consistent with the City .rules, policies,
ordinances,charter,county,sate,and federal law.
.� rn
EXHIBIT \ t .a
D.It shall also be the duty of the City Manager to organize, reorganize, and
arrange the staff of the City and to develop and establish internal
regulations, rules, and procedures which the City Manager deems
necessary for the efficient and effective operation of the City consistent
with the lawful City directives,policies, ordinances, city c.harter,county,
state, and federal law.
E.The City Manager shall perform the duties.of city manager of the City
with reasonable care,diligence,skill and expertise.
P.All duties assigned to the City Manager by the governing body shall be
appropriate to and consistent with the professional role and responsibility of the
City Manager.
G.The City Manager cannot be reassigned from the position of City Manager to
another position without the City Manager=s express written consent
H.The City Manager or designee shall attend,and shall be permitted to attend,all
meetings of the governing body,both public and closed,or otherwise consistent
with state law.
I. At the direction of the City Commission, the City Manager may also serve as
the Opa-locka Community Redevelopment Agency Executive Director.
Section 3: Compensation
A. Base Salary:City agrees to pay City Manager an annual base salary of$150,000,
payable at the same time that the other employees of the City are paid.
B. The City shall execute all necessary agreements on behalf of the City
Manger's retirement benefit participation in ICMA-RC Retirement Plan.
(The City will pay an amount equal to twelve percent (12%) of the City
Manager's annual base salary).
Section Al:Hearth,Disability and Life Insurance B its
A. The City Manager shall receive the City's executive insurance package for
himself and dependent family members;including health insurance(PPO Plan),
other medical insurance available to other employees, life insurance,disability,
vision,and non-cosmetic dental insurance. At his option,the City Manager can
receive the above stated coverage from the City or in lieu of receiving the
coverage may receive$600 per month.
B. The City agrees to put into force and to make required premium payments for
disability coverage for the City Manager.
•
C. The City shall pay the amount of premium due for term life finance in the
amount of two (2)times the City Manager's annua base salary,Including all
increases in the base salary,or at the City Manager's option,the City agrees to
pay the full amount of the premium due for a Whole Life insurance policy with
a death benefit equal to the City Manager's base salary.
D. All provisions of the City Charter and Code,and regulations and rules of the
City, relating to annual and sick leave, retirement and pension system
contrbution, holiday& and other fringe benefits (i.e. GAP insurance) and
working conditions as they now exist or hereafter may be amended,also shall
apply to the City Manager as they would to other employees of the City in
addition to said benefits enumerated specifically herein for the benefit of the
City Manager, except as herein prvided.
Sermon 5: Vacation and Shat
The City Manager shall accrue fifteen (15)sick leave days per year and twenty-five
(25)vacation leave days per year.
Section 6:Automobile
The City agrees to provide the City Manager with an automobile and full coverage
automobile insurance during the term of this Agreement.
Section 7:Retirement
The City shall execute on behalf of the City Manager's retirement benefit
participation in FRS(The Florida Retirement Systen1)firm
Section 5:General Business Expenses
A. The City shall budget and pay for professional dues, travel, short courses,,and
seminars.
B.City shall pay for or reimburse the City Manager for all ordinary,necessary and
reasonable business expenses incurred or paid, by the City Manager in
furtherance of City's objectives, all of which shall be reimbursed and paid hr
accordance with City's policies and procedures of general application.The City
shall provide the City Manager with a credit card to be used by the City
Manager to pay for these expenses.
C. Recognizing the importance of constant communication and maximum
productivity, the City shall provide the City Manager a laptop computer,
SVII ?.•£F`, +w.Lil a roat'tiy a owa`i3:e of t cc hu tta cd fifty £iolla.s ($150) for
itloiltitt C}li�3i'•.
SeN...t i ,i.ern:IA:Aii `
A. This t e..4wwr may only j ?c i r.a f tile Ci:.y Matta�s:r abandon his job
�� s33 .:.. 11'3t'e'.si��.- i ,iw''
or i. formally charged for criminal conduct.. For tie- purpose of this
2'+>gnx,mc t, shall occur:
{ s
1 .'t ti7✓' trier.ni"rs of t-ic'+ City Commission ission .vo i:,t to ss :7 s'3i.:L' tlilt Cites:
kY anuat i i a corf.,aHce with {. is Agt's inen at a pro r y 3o$v�ii it isl
duly authadz&I public rnetttting.
S. Di t£i .event a lawsuit is initiated to ertfo;co tile team oftihi;'• agreC;;nea ,
die r t vwiling, shall entitlal attorney's fms and sit costs.
B. The City shall not rc£.1ucd bill base salary, cotli'i?enfiat on or uay dote financial
benefit of the City Manager an&if is does:,such act'so's1 shall ec`:i ts'iutt,a breach
of this Agr-,'avrilt,St.
Si:k.41=t Strve,rttaiT.
e e ii1:;e ].b li rziti to tiiv City N.1:3 i i`.:;r 'f' cFE mploral,,.;t is tcri ina tc.:$.
without cause as sivcifieAl in ibis Airiremeu and urstta..t to Florida Sta 3t s
'�1 ,425 Section I .• Y> as• of w s of salary ;lot 3w4�
1�:.'..'...i. ;v.,. �i,'.^� r'L�Ev'El. J�:fi..I :3.t Lir'1's i's£ L... ls£3riTt: .>: '� It'":.^',�S C%: �.lc., t s..
th a: forty-kw!: 05), butt i'ic;it ti ski':: f.`tast sixty (;1,30, days from the date of the
termination and in tgital bi--monthly iai:stall£"'s enta,
Sv'f;` i.
1 is 3.1. a<>p>::'4:...riot.'
if either party the a reettlem,that party shin provide a minimum of thi3 Y
S'di r 12; Hour's si?.: %Q3riz
The City rec£3gttizes that the City y`1aiutSyei must devote a great deal of time outside
the normal offiec hours fitr.t basinctts for the City,and to that Cis£;City Magc'ig r shall
be allowed to establish an appropriate work. schedule. The Si"•heclt le shall hC
appropriate:,.- to the needs of the City atid shall allow the City °' .a.=y''er to Fai''il:ail:is
#.tiv£°:iJr'm duties s and 7e$por sibifilie s.
;c tort I t ieal(.'.E3s..amil.°sita.nts
'>'az City Manager will at all flutes uphold the ta.neks of.c..tilic:s. Spe'itszally, the City
petitions,or participate in fund-rasing activities for individuals seeking or holding
elected office, nor seek or accept any personal enrichment or profit derived from
confidential information or misuse of public time. Provided, however, the City
Mang may attend fundraisers for issues or candidates, excluding City of Opa-
locka issues or Mayor/Commission seats.
The City shall support the City Manager In keeping these commitments by refraining
from any order,direction or request that would require the City Manager to violate
the Code of Ethics. Specifically, neither the governing body nor any individual
member thereof shall.request the City Manager to endorse any candidate,make any
financial contribution,signor circulate any petition,or Participtte in any fund-raising
activity for individuals seeking or holding elected office,nor to handle any matter of
personnel.
The City Manager shall comply with Chapter.1 12. Florida Statutes and section 2-
11.1,Miami-Dade County Conflict of Interest and Code of Ethics..
Section 14:Outside Activities
The employment provided for by this Agreement shall be the City Manager's primary
employment.The City Manager may continue to receive residual compensation from
activities prior to.this Agreement Recognizing that certain outside consulting or
teaching opportunities provide indirect benefits to the City and the community, the
City Manager may elect to accept limited teaching, consulting or other business
opportunities with the understanding that such arrangements must not create a
conflict of interest nor constitute interference with his responsibilities under this
Agreement.
Section IS: Indemnification
A. The City shall defend,indemnify and pay all judgments or setl]ements in regard
to any personal liability arising out of and in the scope of the City Manager's
responsibilities, to the fullest extent authorized by Florida Statutes, and other
laws, and in accordance with the City Opa-locks Code of Ordinances, in
addition to any insurance purchased by the City. The City agrees to pay all
reasonable litigation expenses of the City Manager throughout the pendency of
any City of Opa--locka litigation to which the City Manager is a party rum remelt
of acts or omission within the course and scope of his employment,witness or
advisor to the City. Such expense payments shall continue beyond the City
Manager's service to the City as Icing as litigation is pending.
B. Nothing in this section shall constitute a waiver of sovereign immunity or a
waiver of any other defense or immunity to such lawsuits.
Pages of 7
C. Nothing in this section shall create any private.right of action against the
City by any third party.
D. Nothing in this section shall provide For any defense, .s "nation or
payment if the City Manager acted in bad faith.with.malicious purpose,or in
a manner exhibiting wanton and willful disregard of human rights,safety,or
proPutlY.
Section 16:Bonding
The City shall bear the full cost of any fidelity or other bonds required of the City
Manager under any law or ordinance.
Section 17:Other Terms and Confident eflginpiloyment
A The City, only upon written agreement with City Mager, approved by
resolution,shall fix any such other terms and conditions of employment,as it
may determine from time to time, relating to the performmtce of the City
Manager,provided such terms and conditions are not inconsistent with or in
conflict with the provisions of the G' ty Charter,Ordinances or any state, or
federal law.
B. Upon the termination of this Agtecment for any mason,the City shall enter
Into a separate Agreement with Roy Stephen Shiver, with a term of not less
than two(2)months for management consulting relating to the transition of the
position of City Manager, and the compensation shall be :at the rate of
compensation, including all benefits as Roy Stephen Shiver received as City
Manager.
Section IS:General Provisions
A. Integration. This Agreement sets forth and establishes the entire
understanding between the City and the City Manager relating to the
employment of the City Manager by the City. Any prior discussions or
representations by or between the City and the City Manager are merged
into and rendesed null and void by this Agreement The City and the City
Manager by mutual written agreement,approved by resolution of the City
Commission,may amend any provision of this agreement doting the life of
the agreement. Such amendments shall be incorporated and made a part
of this agreement.
B. Binding Effect. This Agreement shall be binding on the City and the City
_..it..a_L_2-.. __........ d..a.w......,n ....e.:.lnl emYSSSawfstivm
Page 6 of
C. Effective Matte This Agreement shall become effective on
September ,2015.
D. Severability. The invalidity or partial invalidity of any portion of this
Agreement will not affect the validity of any other provision. In the event
that any provision of this Agreement is held to be invalid, the remaining
provisions shall be deemed to be in full force and effect as if they have been
executed by both the City and the City Manager subsequent to the
expuagemrent or judicial.modification of the invalid provision.
E. This contract shall be governed by the laws of the state of Florida and
venue shall be in Miami-Dade County, Florida.
Read and Approved as to Form,Language,Legality and Execution thereof.
Vincent T.Brown,Esq.
The Brown Law Group,LLC
city Anomey
% ...�
Executed on September 1 ,2013
Myra T < or,: =y.
City of Opa • FL••
"'"'!"~^
Executed cut September�,., 2015
Ro Shiver
Page 7of7
SI 0/4 of'
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Office: :M5,-5534621
305-S53-2.32$
Fox: = s3•213n
Roy Stephen Shiver,it.,City Aar::agar
City of 0pa4ocha,Florida
City Hail 78.0 z iSii::r£i ao Stt- L't
Op<:..iweka, Florida 33054
'tile Honorable Governor Rick Scott Via Email: Riek.Seott@EOCI,MyFloritia.com
Sc of 1ka GsN:#iivs at : t a
4)O S.'Monroe
Straot
Teti.h.:ssec, Fonda 32399
e: City of Op.a i£ck[, M F£it Efit,City Manager notice of i .tefil} urgency and request to rot-,..et
Dear o ss error Soot::
Co < e pi<.r <Cy 005. #i3 . . �r ti ago,the _l`G : icy Cot-old-as-Ion, e le.te` and L„F ;cSed
with ;i"tO Sel'Ve.t S tile::City Mattagir. Now that I've h td these;' &za of ?�C5 Li4; bet w, i i
F:
duty, 110::i:d to iafoc:":3 you that I. ant extremely ouce n d about the C ityts cu:ront fi'art tai
i • ': ° s .' s,� t, 6>�Cf } "s gg} t a .... D s of
position.iiiii. t a:.:'i�Y G. 3i3"4 f.tJ3 3;tt�(.ks. o�.T 1.#tttii:: a't.cit?#s I:A%T..d�i�i� and ��� Lt:: j�iliiifaf�iii
fitt1 ncie€ f#a g:xno , I must :i City's current financial condition to your attention; and, thus i
N: ..s:a r it,t>t.iif with you or your.".`:i{sii at ics%','v:%a<. .t i'ti(;•<:::.xi:.° i:i..:t wt.+.{.,
Although s need tV GL 1 tsf.,you of he rteFi < .`; ii C tc: S c::f: g?:g .if ta:'J +h ;fr.r.; i "; .
t u tt .# ':r w M.1 `<-, .t :< ii.v '} changes vivo to s � r cT v`S::f
'rJ. . i• ;: i'�i:}tl�:[ you vt. �� 'tt,. ,less<€ f; fiscal G�iii.a.�:a:�4' .1's;:� for tai'::�it�. �OL't:S"s's.:.,..,.i£
is hy `( want you t�t /�;.. t alt,,.. 'iv s: C t< v1 i#iasTe`r and with the u {rt of the
�.. ::` {ii</♦ I �fC:e�i.-J y i. '�nv > (hat, ftt} Y� a �.. :t f S � 9 J.. }24 :T Fi�7.<.,�.:.> f
Mayor i.i tI C%ii:i37i Ctr}:�, . tci t.,., wt�.:x able s Ti'} •t ' in mall t < i Lt'f our
;t1 3 #�u s � €:1�' L`1 ii5i,.rt. 57�31iftf,iii'#; f�i'.C.� iii �1IIi,<iiZ i'f,}GE`t' fi:
.,mouii:.2 ::ontciti oia.
Since ilea' 'Cm laymef'it, I have an cl tinu:. tec is a steps, with he }.ny i3 and Commission, to
".r' . S size the s .Y" L e things p and, .<rf a some M <> } y <<t } k,
tfi" ..�?:i �#1� ;�1 •_i..xs..,i3t. .x,.iF:� �'t:.�3.�fc, L2'S L't. �f'tE?;'t,Y`v°,
a ?it .r, r l�i- t%ii:�; Eli T I � i'.tk i2 E.iriv s
wail:. :t3 be eIettl. the magnitude of tha currant financial situation .Vain atss my # otitticaition as in
i'q pra essiona:jticgn?rt the City has trinh?t.':ed certain se<:.tioa. of 1'.S, S ciuot;2;g.SO3 by that
follow fl u recant conditions:
I. LO VA gUV:ti' Aril Ont:i?f.`.lr ... shall t.,, .., Sl:tt i s oT:e i 7 he Governor ti ...
:'s�tLx a 37���t u�. �ctt 1 Cf. to review`S3i `':i?<� t1.s1£ by the JL't .l':i.
4:.' }u.any£tits of the following conditions mutt:
(b) S e City's rsihare to pay t3#3::t)F'stested claims. from ereditoia within 9(1 days after the claim is
CUT HALL no efa?a3wIt Stmet On....1(.411A(.411't;FLMID L .1:::i154•—5)96S-292.
PM tgi...F.AL. P:ORTUNIKY r:K Li.P'iER.T tr0£2e ii Wit Or...4::tu'Fi4.iit ON Tit Dt... ni u.<:HANDIC. ' A j •,� &•
.
a bpi italT
4
EXHIBIT '''\ e •••,,-
(c)Failure to transfer at the appropriate time,due to lack of funds:
2. Employer and employee contributions for.
b. Any...benefit plan of an employee.
Further,the City is currently battling triggering paragraph(d)which states:
(d) Failure for one pay period to pay,due to lack of funds:
1. Wages and salaries owed to employees;or
1 Retirement benefits owed to former employees.
On the positive side,while I walked into the City Manager position at budget time with an over
$900,000 budget gap,at our final budget hearing on September 29,2015,1 presented a balanced
budget which the Mayor and City Commission adopted. It substantially reduced our employee
position count by 22%saving over$1 million In personnel expenses. And,for the first time in
four(4)years,I was able.to balance their budget without significant borrowing. My professional
team found an additional $400,000 in operating expense reductions,as well as missed existing
revenue and identifying legitimate new revenues expected this current year of$600,000. To feel
comfortable with my recommendations,as my hire date was during the final stage of the annual
budget approval process,I immediately brought in outside financial consultants versed in dealing
with financial crisis,to ensure the accuracy and integrity of the data and Information used in my
proposed and final adopted FY 2015-2016 budget.
However,as I state above,the City continues on the brink of financial urgency and below,in full
disclosure,are some additional facts.
Due to numerous changes in City Managers and top staff,poor decisions over remit years have
led to today's major cash flow crisis. The City remains challenged in paying its bills timely and,
every two weeks is challenged just to meet staff payroll needs. The past practice of questionable
transfers between City funds has,in part,led to our new,unaudited financial statements showing
a "$3,839,245 overdrawn cash. liability" in our Governmental Funds as of just this past
September 30, 2015. Our annual City budget is small and such liabilities, although not
Impossible to overcome, make for an extremely difficult short term financial future if we are
unable to negotiate and stay the course I have mapped out. The City's Fiscal Year 2014 financial
condition was found to be deteriorating by our auditing firm, and reported in the 2014
Comprehensive Annual Financial Report (CAFR) not only for 2014, but also as a repeat audit ,
finding from their Fiscal Year 20)3 finding. Our auditor stated in the last(2014) CAFR that
"The City of Opa-Locka was not determined to be a law-risk auditee" a passive statement
regarding a very serious matter, in my opinion. in closing, I have inherited a city opeion
where outside forces and lack of consistent management have significantly impacted the
financial health of the organization.While there is hope with the adoption of my recent balanced
and prudent budget, we respectMly ask that we be allowed-to work closely with your office to
ensure a financial oversight committee will not be necessary and we are able to continue to
follow a fiscally prudent path.
Sincerely,
tx: Legisianve Ault uonunittee via BMW':'LAC*Leg,S1Ble.M.US
CM HAU.sae Pkissmon StneittOPA-LOCIUte FLORIDA S3454.(305)064$41ral
AN EQUAL OPPORTUNITY EMPLOYER AND COES NOT DISCRIPUNKTE ON TKO NANDI OP HANDICAP
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tight to tessalaute the mxtsger If he dyes not do hh job,The emend t is illegal because it ale
conflict with the charter.He laid then after the dais funs the=DOW they titmdd as themselves
why City Anomey$town would bawd sigtewd oIl on a doumeot with Itunmage tint would
violate the City Cbsau•
Forma C`,omntnsioner pithy lobate. 13734• NW 22 Place, statsai off by.remtestibg
additional date to zWrest the C mmcdas.She riadd that het heat Is heavy,bantam the
Cohan ends to hold themselves acoanaable for*dart is galas on whit the liratems.The
City lsa gene in another d ante s shave 201 0:end lout gin theoughilve($mama tas.Getting
rid of the stamen is tun the aasaxe,it is.a000e ntablibty tot dhtatoas.gip rid the City dote ore
card i ituppc but !totemic 3.Ggs � not County drys slot
tabrtk�ai s'appoet lest
in ea*and every on ea the City Catteticitott.
lamb;EMng.676 Waal Assent,mind that the wads of the community dens tot mauve
bemuse lest cotiemisddtar meeting the tact sus asked that the City Amager be allowed to do his ,
job without iutcfaeace. She said the.dais Is bring sneaky and chose to ceaduct the cl t
meeting while everyone west at week end would not be able to voice their**tom an the mater.
The residents believe it whet t the moaner is ttsing to da and the pacing-MOD du Oak be1MB.
This should he handled Idle sbusiness.'fito atanagerhe s not hays able to do whit be bas to do to
only throe(3t rmnnths.She laid teat it maybe dare fat the Cumatieian tote strpleced.There was
a march lam month sad the residents vowed to taus back the City:stud maybe ttblog bad the
City cords to,watt with the dab.She asked thin they leave die manager alone and allow him to
do his ph.
A Hispanic lady came to the podium and requested a translator. Della. Aent►edy. Grail
Administrator jolted hoe at the pedlwn to imitate.She said that she brwaukd edtoe*the state of
the City sod is afraid to leave tamp teal have had th send bar oltlidrea away baeen*they w
attacked is the City.She said she is disatu *gait=when she gum elsewi!ere and mils
mole she at hem Weri e.She raid*Meths wars auadeed with a pha&i.A friend dimes was
shot is the node the atha'ttight.In best tweedy Ana as a amittror it has neva beat as badar it is
now.The ;nun„people are a big pert of the pioblrm.If sasnethiag Is not dote Omit the
%ttu>alon,the residents we papered to now away.
Chris Rabat%.tam Rutland Sunx&am that the ramble that she is searing Dow is cot cs.The
City Manager i.being blasted he everything that is Om on and it's sat right She said that
rebo ty respects each tudter on the dais.Respect urea lost years ego and It has or be restored.
Itaisdee Sneahw.d. 123$ Duna Aaemr:,addressed several 1.ater In the City.and told the
reaess3er that she at m.GiaB him to make the oanununity boner by deisg his jab.
Arias Daum.303 NW 134w Street.said thane is rushing pawed is theattanaget'i a nano s;
anti dual its hated on the chatter.tie referenced section h and C to the comsat regeogag City
Amager Shiver's tholes.'llat caatca►x teketiNes the law from The(Laster.lie said that when
them is game playing because of employccs who mein in cahoots with Canmdstiontts and pang
raises.That is eat felt to the empioyees that are bang laid oft The Chaster and the ankle state
a
*col a.,stueena..ts atruk..IMAMS
•
that the manager bin theme of the day to day t rertakrts of the City.Than des hoe lien City
ivfoneger's In the Ism few years bring terminated with osar three hundred dttsasteld dollen'in
mow($300.tIUQA4)•This City Menem would be the sixth.The jab of the aty eon=first.
Resales':cows flint.Employees coupe Clash.He said that are or two year employees atsauld not
hale psirrhty over veteran employees.
Mayor Taylor thaukesi everytthe that bad given thcbt cwnnreno lend ssatenteats during citizens
input.
6. RESOLUTION:
(a) A RESOU.'IlON OF THE MT COMMISSION OF TUE an OF OPA-
LOCEA.FLORIDA TERMINATING THE EDIPIAMOINF.AGR> KT wnI goir
STEVEN STOVER;PROVING FOR INCORPORATION OF RHCiTALSS;PROVIDING
FOR AN EFFECTI E DA:12..Sbaruoredby MaynrTaylor.
The above resoltsd m was*Why City Attorney swop
Matsw Taylor paned the Fsrrd over to Vice Mayor Holum.because she spoaoarcd this
tt stdaeaa amid*aetu two.
It was moved by Comeissionet Santiago and acceded by Meyer T tytct opus the:esot+tdoa.
Mayor Taylor said that it has been said that she hiss a*twat uses w hh Chy Mtwages Siam
hawser she does oat Snow him enough to two Omani iseut with him as that hem the age.
it&purely jab egged.Cite Massager Sliver emu iafotl ai tea us Taegu=drat saying that he
we defy ottligehat bast Ito is fan obligated to the Comnhidors xeeasdiag to The Chimer.The
mover made ft seem toll theorems eras a dire need ha an oversight eoatmittre to come le gad take
over the Gtr"The City is not this first City to be in a Maucial situattoa.and t will not baths
iatr•The Chy did we Pi data opportunity to g*t a reeevely plan m Wag the City beck.In lino
wash fiteatttxr.The information was sad airtight to Tallahassee and that the Commission b aend
rag about it.
She state:that if an uvorstglu is*red on the City,adminla uatiot i'1 gone.the Commission is
Fen.and the state will tits everything.Thesis*sea fl a letter cadet what u1 was the CV wanted
them to de The state worts the City us give than a plan to avoid a tektostr.The Chatter has
fasts violated on several fronts with this manager and everything that be is pawing cm there.
Deb the dais and the manages have taken an oath to follow The Cotter and the manager it we
deter an Six add dee one of her cvitoagecs sold her that if something it goktg to he dons.it
*tens to be donne per.
Six rely expressed that she cant and*dl net work with the monger.He dots nut speak to
her Porn when ttutiac was pea out he never unoa cancel her and what tow they mkt atUSc out
whatever**issue it.She repeated that she cannel and wilt not wort with Coy Manager Shiver.
3
rbadaeORSStuwonmet& ss.&union$
Cumunlssionet Santiago said that he does not undeatteal w.ty he was told that icer}shing was
day tsitb the budget and then come to tint not it s ant so.fie said that he is ready to vote on the
Vice Mecca Holmes said that be dues art uutkarstand all of thepeek saying that lheirbrea Is fin
sAd for tiz manager Mein he just carmsm the Caty.But when Kelvin,Baker ores City Manager he
bought Pony million dollars(340.000;ONI00)tot i ur,he Worths.in aver eight minima
dollars(S8A40.900.00)roe the tau City Iiefl but nobody came to dz mesthigs and salt Ant
their 3teaata;were red when he let!.
He said tbitt City Maaagca Shiva hthaatd have come to the Crtnmissica and king them
decumsnua drawing what he has!man doing to improve the co:titian and s►tgdue of the C%Iy.
fie said tout be does not recall tiny of those:Maps being dime.lie wants to how why evo ymmc s
hraat is so berry.the msyar mid that she rant wort with the manager and if be des the power
to do something akin nix sheaths*he will do to Re dots net want to come us meeting otter
meeting and there are bad kefings AU around.
There being no further discuss:on.the=Sum passed by A 3 1♦t44.
Vice Mayor Holmes Yet
CouuntalotterRaley tka.Pteacet
Comatissioact Pied a No
Commissioner Santiago Yes
Mayor Taylor Yes
(b) 4 RESOLUTION OF IIIE CITY COMMISSION OF IRE CITY OF OP&
LOCKA APPOINTING AN INTERIM CITY MANAGER; PROVIDING FOE
INCORPORATION OP RItCITAL& PR04'UnNG FOR AN EEVECYIVE DATE.
Sponsored by Me r1a for
The;More resaitntcxt was read by City Manley Brown.
Ls. was moved by Comnttitsionx Sant*;ipp and seconded by Ctnaulnis inner Pinder to't the
t endon.
Tlxxa being no further tills exsiou.the motion timed by a 4•0 vote.
C:emmissiawe Entity Nut(Resent
Commissfener Piader Yet
Cstrmnianaer Santiago Yes
Vice Mayor f{olmes Ye%
MayorTtsylor Yes
(el A 11EsOLUTION OP THE CITY CO MISSION OF THE CITY OF OPA.
LOCO,FLORIDA,MIMING RESOLUTION 13.9039.DEL TINC ROY STEVEN
SUrVER A5 SIGNATORY AND ADDING DAVID CEWERT'ON (INTERIM CITY
a
sv aaa..o..cw.+.00w waww,•warms
•
MANAGER); PROV WIbNG FOR INCORPORATION OF RECITALS;PROVIDING
FOR AN EFEECI1VE DATE.Spoawnd by Mayor Taydtr.
The abort tesaittron was nerd by Qty Attontey Brawn
k was moved by Ctuntnkttiooce Pioder mod sanded.by Dayantssioner Santiago to pass the
resaAd:na.
Theta kin co Anther disatsdgn,the rmioo puled by a+O vat
Comatlu4 awr Piadar Yes
Cnm *ssimateSanasdo Yec
S'os Mayor Rotates Yes
Comnsisdinser Xciley No Pesters
. Mayor Taytar 'Yes
td) A RESOLUTION OP THE CITY COMMISSION OF THE CITY OF OPA
LOGBA. FLORIDA, TO AETNOVITS THE CTTY COi►f1NPSSION .(OR T lEw
AUTHORIZED PROXILI) TO OPERATE AS A HOARD OF INQUIRY INTO
CURRENT AND PROSPECTIVE FISCAL STATUS AND PERSONNEL MATTERS OF
THE QTY PURSUANT TO ARTICLE VIII SECTION 2(e) OF TIER FLORIDA
CONSITTVTION AND ARTICLE It SECTION ENS)OP THE CHARTER or TTTE
ern OF OPA.•LOCKAi PROVIDING FOR TM APPOINTMENT OF HEARING
OFFICER: CONVENING Tat BOARD OF INQUIRY ..,....._.._,.. .._.i
PROVIDING FOE 1NCOEPORATION OP RECITALS PROVIDING FOR AN
EFFECTIVE DATE.Spewed by Cotautim unet Piades.
The above resolution veto mad by City Attamty Rtowa.
II was moved by Ccanmhsirnsec Pinder and srsrsnded by C arne st onet Santiago.
Vice Mayor Holmes asked C'snam►ssloae r Pindet If the telsOlatiptt can ha held off until after"the
boiidegs.
Commissioner nud that is titre with bin;tart warns ta•a tend iK'u they veto on it and come his k
with the paniculata at a inter date(within Sheen days).
Mayor Iaykt unwed with Vice Mauer Mohacs.
Coy Attorney li►owa warns to clarify brat the only thing that is being b►ai►glu Witte the met
medal in appotntiatg a heating examiner stud the time and time that the board will convent.
Tam hemp no further disi.ussiaa,the motion px+srtf by a 3-t nee.
Gurants:doer Santiago Yes
Vice Mayor Writes No
5
s.ww tx.ata,aawr Loosen-at✓LVmts
Gnnanlbsiunn Kelley Not Patten
Cotuwistloact Ponder Yen
3txyorTuylas Yes
7. AWOURNAlleilt
Than Wog no fustbd Waurcsa to Como before the Cotnnd ion.b wos owed by Commitslottor
Platter and aswavtbytan io leserSumto ' ,. ,=:, :tdt3tI5p.ai.
ATTEST:
- 6"k......4t)t-
t CTTYItERK
Filing # 77905926 E-Filed 09/14/2018 11:52:23 AM
IN THE CIRCUIT COURT OF THE 1 1TH
JUDICIAL CIRCUIT IN AND FOR
MIAMI-DADE COUNTY, FLORIDA
CASE NO.: 2018-028275-CA-01
BARRY E. MUKAMAL, as Chapter
7 Trustee of the Bankruptcy Estate
of Roy Stephen Shiver,
Plaintiff,
vs.
THE GREAT CITY OF OPA-LOCKA,
FLORIDA, a municipal corporation,
Defendant.
MOTION FOR DEFAULT AND DEFAULT,
Plaintiff, BARRY E. MUKAMAL, as Chapter 7 Trustee of the Bankruptcy Estate of
Roy Stephen Shiver, moves for entry of a default by the clerk against the Defendant,
THE GREAT CITY OF OPA-LOCKA, FLORIDA, a municipal corporation, for failure to
serve any paper on the undersigned or file any paper as required by law as to the 20-
days Summons and Complaint served upon it.
DATED: September 14, 2018.
FRANK, WEINBERG & BLACK, P.L.
Attorneys for Plaintiff
7805 Southwest 6th Court
Plantation, Florida 33324
Telephone: (954) 474-8000
Facsimile: (954) 474-9850
E-Mail: msilverman @fwblaw.net
By: Is/ Marc A. Silverman
MARC A. SILVERMAN, ESQ.
Florida Bar No. 144444
Page 1 of 2
DEFAULT
A default is entered in this action against the Defendant THE GREAT CITY OF
OPA-LOCKA, FLORIDA a municipal corporation, for failure to serve or file any paper as
required by law.
DATED on , 2018.
HARVEY RUVIN
Clerk of the Court
By:
As Deputy Clerk
Copy furnished to:
Marc A. Silverman, Esq., Frank, Weinberg & Black, P.L., 7805 Southwest 6th Court,
Plantation, Florida 33324 @ msilvermanCcr�.fwblaw.net
Attorney for Barry E. Mukamal, as Chapter 7 Trustee of the Bankruptcy Estate of Roy
Stephen Shiver
The Great City of Opa-Locka, a municipal corporation, do Mayor Myra Tayor, 780
Fisherman Street, Opa-Locka, FL 33054
Page 2 of 2
f
DEFAULT, f 2 g2- 7J-- CA
A default is entered in this action against the Defendant THE GREAT CITY OF
OPA-LOCKA, FLORIDA a municipal corporation, for failure to serve or file any paper as
required by law.
DATED on SEP 2 I MR , 2018.
HARVEY UVIN 3
Clerk of Co 4 - t ^
By: ,.
As Deputy Clerk ; za , s. •
Copy furnished to:
Marc A. Silverman, Esq., Frank, Weinberg & Black, P.L., 7805 Southwest 6th Court,
Plantation, Florida 33324 @ msilverman @fwblaw.net
Attorney for Barry E. Mukamal, as Chapter 7 Trustee of the Bankruptcy Estate of Roy
Stephen Shiver
The Great City of Opa-Locka, a municipal corporation, do Mayor Myra Tayor, 780
Fisherman Street, Opa-Locka, FL 33054
rJ
X
It
N)
O
Page 2 of 2
Filing # 78266741 E-Filed 09/21/2018 04:11 :13 PM
IN THE CIRCUIT COURT OF THE 11111 JUDICIAL CIRCUIT
IN AND FOR MIAMI-DADE COUNTY, FLORIDA
CASE NO.: 2018-028275-CA-0l
BARRY E. MUKAMEL, as Chapter 7
Trustee of the Bankruptcy Estate
of Roy Stephen Shiver, Jr.,
Plaintiff,
vs.
THE GREAT CITY OF OPA-LOCKA,
FLORIDA, a municipal corporation,
Defendant,
NOTICE OF APPEARANCE
The law firm of JOHNSON, ANSELMO, MURDOCH, BURKE, PIPER &
HOCHMAN, P.A., hereby enters its appearance as counsel of record for Defendant, CITY
OF OPA-LOCKA, in the above-styled action.
Copies of all further pleadings and papers served on Defendant, CITY OF OPA-
LOCKA, should be forwarded to:
Michael R. Piper, Esq.
Johnson, Anselmo, Murdoch, Burke, Piper & Hochman, P.A.
2455 East Sunrise Boulevard, Suite 1000
Fort Lauderdale, Florida 33304
Telephone: (954) 463-0100
Facsimile: (954) 463-2444
Primary Email: piper @jambg.com
Secondary Email: semexant @jambg.com
1
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was SERVED
and FILED through Florida Courts E-filing Portal to Marc A.Silverman,Esq., Counsel for
Plaintiff, Frank, Weinberg & Black, P.L., 7805 S.W. 6th Court, Plantation, FL 33324, this
21' day of September, 2018.
/s/Michael R. Piper
Michael R. Piper
Florida Bar No.: 710105
JOHNSON, ANSELMO, MURDOCH,
BURKE, PIPER & HOCHMAN, PA
Attorneys for Defendant
2455 E. Sunrise Boulevard, Suite 1000
Fort Lauderdale, Florida 33304
Telephone: (954) 463-0100
Facsimile: (954) 463-2444
piper@jambg.com/ semexant@jamhg.com
2
Filing # 78271527 E-Filed 09/21/2018 04:47:54 PM
IN THE CIRCUIT COURT OF THE 11'JUDICIAL CIRCUIT
IN AND FOR MIAMI-DADE COUNTY, FLORIDA
CASE NO.: 2018-028275-CA-01
BARRY E. MUKAMEL, as Chapter 7
Trustee of the Bankruptcy Estate
of Roy Stephen Shiver, Jr.,
Plaintiff,
vs.
THE GREAT CITY OF OPA-LOCKA,
FLORIDA, a municipal corporation,
Defendant,
ANSWER AND DEFENSES
COMES NOW,Defendant,CITY OF OPA-LOCKA,by and through its undersigned
attorneys, and for its answer and defenses to Plaintiff's' complaint states:
1. Defendant denies' the allegations of paragraph 1 and demands strict proof.
2. Defendant is without knowledge of the allegations of paragraph 2. Defendant
therefore denies same and demands strict proof.
3. Defendant admits the allegations of paragraph 3.
4. Defendant is without knowledge of the allegations of paragraph 4. Defendant
therefore denies same and demands' strict proof.
5. Defendant admits the allegations of paragraph 5 to the extent that venue is
proper in this court.
6. Defendant admits the allegations of paragraphs 6 and 7 to the extent that
Exhibit "A" is a correct copy of the purported September 2, 2015, employment agreement
and that the terms of the agreement speak for themselves.Defendant denies any and all other
allegations contained in paragraphs 6 and 7 and demands strict proof.
7. Defendant denies the allegations of paragraphs 8 through 16, inclusive, and
demands strict proof.
8. Defendant is without knowledge of the allegations of paragraph 17. Defendant
therefore denies same and demands strict proof.
9. Defendant admits the allegations of paragraph 18 to the extent that Exhibit"A"
contains a prevailing party attorney's fee provision. Defendant denies any and all other
allegations contained in paragraph 18 and demands strict proof.
10. Defendant denies any and all allegations not specifically admitted in this
answer and demands proof.
1 i. Defendant is a sovereign; specifically, a municipal corporation organized and
existing under the laws of the state of Florida. As such, Defendant's liability is statutorily
limited as more fully set forth in §768.28, Florida Statutes.
12. Defendant did not breach the alleged contract.
13. Defendant fully performed its duties and obligations in accordance with the
alleged contract.
14. Roy Stephen Shiver breached the alleged contract.
2
15. Roy Stephen Shiver failed to perform his duties and obligations in accordance
with the terms of the alleged contract.
16. Roy Stephen Shiver's prior breach of the alleged contract excused Defendant's
further performance.
17. The alleged contract is unenforceable, as the terms of the contract are ultra
vires or otherwise contrary to Florida law.
22. Plaintiff and/or Roy Stephen Shiver have failed to mitigate their damages.
DEMAND FOR JURY TRIAL
Defendant demands trial by jury of all issues so triable as of right by a jury.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was SERVED
and FILED through Florida Courts E-filing Portal to Marc A.Silverman,Esq., Counsel for
Plaintiff, Frank, Weinberg & Black, P.L., 7805 S.W. 6"' Court, Plantation, FL 33324, this
21" day of September, 2018.
/s/Michael R. Piper
Michael R. Piper
Florida Bar No.: 710105
JOHNSON, ANSELMO, MURDOCH,
BURKE, PIPER & HOCHMAN, PA
Attorneys for Defendant
2455 E. Sunrise Boulevard, Suite 1000
Fort Lauderdale, Florida 33304
Telephone: (954) 463-0100
Facsimile: (954) 463-2444
piper@jatnbg.com/ semexant@jamba.com
3
Filing # 78324963 E-Filed 09/24/2018 02:54:10 PM
IN THE CIRCUIT COURT OF THE 11TH
JUDICIAL CIRCUIT IN AND FOR
MIAMI-DADE COUNTY, FLORIDA
CASE NO.: 2018-028275-CA-01
BARRY E. MUKAMAL, as Chapter
7 Trustee of the Bankruptcy Estate
of Roy Stephen Shiver,
Plaintiff,
vs.
THE GREAT CITY OF OPA-LOCKA,
FLORIDA, a municipal corporation,
Defendant.
PLAINTIFF'S MOTION TO STIRKE AND REPLY TO DEFENDANT'S
AFFIRMATIVE DEFENSES TO COMPLAINT
Comes now, BARRY E. MUKAMAL, as Chapter 7 Trustee of the Bankruptcy
Estate of Roy Stephen Shiver ("Plaintiff"), by and through its undersigned counsel,
and pursuant to Rules 1.100(a) and 1.140, Fla. R. Civ. P., files this, his Motion to
Strike and Reply to Defendant's, THE GREAT CITY OF OPA-LOCKA, FLORIDA,
a municipal corporation ("Defendant") purported affirmative defenses as set forth
in its Answer and Affirmative Defenses to Plaintiff's Complaint, and in support
thereof states as follows:
1. On September 21, 2018 Defendant filed its Answer1 and Affirmative
Defenses to the Plaintiff's Complaint purporting to state numerous additional and
revised affirmative defenses. In all, the Defendant has attempted to set forth eight
1 Defendant filed its Answer and Affirmative Defenses after the Clerk of Court entered a Default
on the same date. As of the date of this Motion,the Default has not been vacated by the Court
and remains in place.
"Roy Stephen Shiver's prior breach of the alleged contract excused Defendant's
further performance," once again said purported defenses are mere legal
conclusions which do not state any factual matter which would indicate when
and how Shiver breached the Employment Agreement, or failed to perform
his duties in relation thereto. The Fifth and Sixth purported defenses are
mere legal conclusions, and as such, are legally insufficient. See Cady v. Chevy
Chase Savings and Loan, Inc., 528 So. 2d 136, 138 (Fla. 4th DCA 1988); See Also
Bliss v. Carmona, 418 So. 2d 1017, 1019 (Fla. 3d DCA 1982) and as such, the
Fifth and Sixth purported defenses are legal nullities and must be stricken. Finally.
and despite the other infirmities contained in the Fifth and Sixth purported
defenses, Shiver was not terminated "for cause" as is clearly shown by the
documents attached to the Complaint, and as such, in the alternative, the Fifth and
Sixth purported defenses are not available to the Defendant. Either way, said
defenses should be stricken.
7. With regard to the Seventh Affirmative Defense 117), to wit: that
"The alleged contract is unenforceable, as the terms of the contract are ultra vires
or otherwise contrary to Florida law," said purported defense is a mere legal
conclusion which does not state any factual matter which would indicate why
Defendant believes the Employment Agreement to be either unenforceable
or ultra vires in any way; again making mere legal conclusions unsupported
by any facts whatsoever. In that the Seventh purported defense is a mere
legal conclusion, it is legally insufficient. See Cady v. Chevy Chase Savings and
Loan, Inc., 528 So. 2d 136, 138 (Fla. 4th DCA 1988); See Also Bliss v. Carmona,
418 So. 2d 1017, 1019 (Fla. 3d DCA 1982) and as such, the Seventh purported
defense is a legal nullity and must be stricken.
WHEREFORE, Plaintiff, BARRY E. MUKAMAL, as Chapter 7 Trustee of the
Bankruptcy Estate of Roy Stephen Shiver, respectfully requests that this Court
enter an Order striking Defendant's, THE GREAT CITY OF OPA-LOCKA
FLORIDA's purported affirmative defenses as outlined above, along with any other
relief deemed appropriate under the circumstances.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I have sent a true and correct copy of the
foregoing to via email/e-filing to all of the persons identified on the attached service
list, this 24st day of September 2018.
FRANK, WEINBERG & BLACK, P.L.
Counsel for Defendant
7805 S.W. 6th Court
Plantation, FL 33324
Telephone: (954)474-8000
Fax: (954)474-9850
By: /s/ Marc A. Silverman
Marc A. Silverman, Esq.
msilverman(a�fwblaw.net
Florida Bar No.: 144444
BARRY E. MUKAMAL, as Chapter 7 Trustee of the Bankruptcy Estate of
Roy Stephen Shiver vs. THE GREAT CITY OF OPA-LOCKA, FLORIDA, a
municipal corporation
Case No.: 2018-028275-CA-01
SERVICE LIST
Michael R. Piper, Esq.
JOHNSON, ANSELMO, MURDOCH,
BURKE, PIPER & HOCHMAN, PA
Attorneys for Defendant
2455 E. Sunrise Boulevard, Suite 1000
Fort Lauderdale, Florida 33304
Telephone: (954) 463-0100
Facsimile: (954) 463-2444
piperniambq.com
semexant @jambg.com
Filing # 79949324 E-Filed 10/26/2018 04:14:59 PM
IN THE CIRCUIT COURT OF THE 11T'I JUDICIAL CIRCUIT
IN AND FOR MIAMI-DADE COUNTY, FLORIDA
CASE NO.: 2018-028275-CA-01
BARRY E. MUKAMEL, as Chapter 7
Trustee of the Bankruptcy Estate
of Roy Stephen Shiver, Jr.,
Plaintiff,
vs.
THE GREAT CITY OF OPA-LOCKA,
FLORIDA, a municipal corporation,
Defendant,
MOTION TO EXTEND TIME TO RESPOND TO PLAINTIFF'S DISCOVERY
COMES NOW, Defendant,CITY OF OPA-LOCKA, by and through its undersigned
attorneys, and pursuant to the Florida Rules of Civil Procedure moves this Honorable Court
for an extension of time within which to respond to Plaintiff's request for production
propounded on September 24, 2018, and as grounds states:
1. On September 24, 2018, the Plaintiff served his first request for production
upon the City.
2. The City's responses are due on October 29, 2018.
3. The City requests additional time to respond to the Plaintiff's first request for
production, up to and including November 29, 2018.
4. This case is not currently set for trial.
1
5. The City's request is not intended to prejudice the Plaintiff.
WHEREFORE, Defendant respectfully requests entry of an Order extending the
deadline by which responses to first request for production must be served, together with
such other and further relief as the Court deems just and proper.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was SERVED
and FILED through Florida Courts E-filing Portal to Marc A.Silverman,Esq.,Counsel for
Plaintiff, Frank, Weinberg & Black, P.L., 7805 S.W. 6th Court, Plantation, FL 33324, this
26th day of October. 2018.
kk -,,,,,,ev,, .
-----Q
v..)„,t2 '
Michael R. Piper
Florida Bar No.: 710105
JOHNSON, ANSELMO, MURDOCH,
BURKE, PIPER & HOCHMAN, PA
Attorneys for Defendant
2455 E. Sunrise Boulevard, Suite 1000
Fort Lauderdale, Florida 33304
Telephone: (954) 463-0100
Facsimile: (954) 463-2444
piper@jambg.com / cintron @jambg.com
semexant@jambg.com
2
Filing # 79955381 E-Filed 10/26/2018 05:12:48 PM
IN THE CIRCUIT COURT OF THE 11.i,t� JUDICIAL CIRCUIT
IN AND FOR MIAMI-DADE COUNTY, FLORIDA
CASE NO.: 2018-028275-CA-01
BARRY E. MUKAMEL, as Chapter 7
Trustee of the Bankruptcy Estate
of Roy Stephen Shiver, Jr.,
Plaintiff,
vs.
THE GREAT CITY OF OPA-LOCKA,
FLORIDA, a municipal corporation,
Defendant,
MOTION TO WITHDRAW AS COUNSEL
COME NOW the law firm of JOHNSON,ANSELMO,MURDOCH,BURKE,PIPER
& HOCHMAN, P.A., and Michael Ross Piper, Esq., of the firm (movant counsel), and
pursuant to Fla. R.Jud.Admin.2.505(0(1)move to withdraw as counsel for Defendant,City
of Opa-Locka (Opa-Locka), in this matter, and as grounds states:
1. Opa-Locka is a member of a liability risk-sharing pool, the Florida Municipal
Insurance Trust (FMIT). The Florida League of Cities, Inc. (FLC), administers the FMIT.
2. The FLC/FMIT retained movant counsel to represent Opa-Locka in Roy
Stephen Shiver v. the Great City of Opa-Locka, etc., et al., Eleventh Judicial Circuit Case
No. 16-013003-CA-01; United States District Court, S.D. Fla. Case No. 16-cv-23722-
WILLIAMS the predecessor litigation to the instant matter.
1
3. Movant counsel is not authorized to continue its representation of Opa-Locka
in the instant matter. Movant counsel is compelled to withdraw.
4. Neither Opa-Locka nor Plaintiff shall be prejudiced in any manner by movant
counsel's withdrawal. The instant matter is in its infancy. The case is not set for trial and
discovery has only recently commenced.
5. All future pleadings and other filings served upon, and all future
correspondence directed to Opa-Locka in this matter may be sent to:
City of Opa-Locka
Attention: Vincent T. Brown, Esq., City Attorney
780 Fisherman Street, 4th Floor
Opa-Locka, FL 33054
(305) 953-2868
vtblaw( ;bellsouth.net
6. As certified below, movant counsel has served Opa-Locka with this motion.
WHEREFORE, the law firm of JOHNSON, ANSELMO, MURDOCH, BURKE,
PIPER& HOCHMAN, P.A., and Michael Ross Piper, Esq., of the firm respectfully request
the entry of an order allowing movant counsel to withdraw as counsel for Defendant, City
of Opa-Locka, terminating said representation, and discharging movant counsel from any
and all furhter responsibility in this matter.
2
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was SERVED
and FILED through Florida Courts E-filing Portal to Marc A.Silverman,Esq.,Counsel for
Plaintiff Frank, Weinberg & Black, P.L., 7805 S.W. 6th Court, Plantation, FL 33324, and
upon the City of Opa Locka, Attn: Vincent T. Brown, Esq., City Attorney, 780 Fisherman
Street, 4th Floor, Opa-Locka, FL 33054, vtblaw(..beilsouth.net, this 26th day of October,
2018.
lsl Michael R. Piper
Michael R. Piper
Florida Bar No.: 710105
JOHNSON, ANSELMO, MURDOCH,
BURKE, PIPER & HOCHMAN, PA
2455 E. Sunrise Boulevard, Suite 1000
Fort Lauderdale, Florida 33304
Telephone: (954) 463-0100
Facsimile: (954) 463-2444
piper(cd am bg.com I cintron(c)jambg.com
3
Filing # 81078260 E-Filed 11/20/2018 03:58:39 PM
IN THE CIRCUIT' COURT OF THE 11"' JUDICIAL CIRCUIT
IN AND FOR MIAMI-DADE COUNTY, FLORIDA
CASE NO.: 2018-028275-CA-01
BARRY E. MUKAMEL, as Chapter 7
Trustee of the Bankruptcy Estate
of Roy Stephen Shiver. Jr.,
Plaintiff,
vs.
THE GREAT CITY OF OPA-LOCKA,
FLORIDA, a municipal corporation,
Defendant,
DEFENDANT, CITY OF OPA-LOCKA'S RESPONSE TO
PLAINTIFF'S REQUEST FOR PRODUCTION
COMES NOW the Defendant, CITY OF OPA-LOCKA, and for its response to each
numbered item of Plaintiffs request for production propounded September 24,2018, states:
1. None.
2. None.
3. None.
4. Attached.
5. See response to item # 4, above.
6. See response to item # 4, above.
7. None.
8. See response to item # 4, above.
9. See response to item # 4, above.
10. See response to item ;f 4, aboA:e.
11. None.
12. None.
13. None.
14. None.
15. None.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was SERVED
and FILED through Florida Courts E-filing Portal to: Marc A. Silverman, Esq., Counsel
for Plaintiff, Frank, Weinberg & Black, P.L., 7805 S.W. 6th Court, Plantation, FL 33324,
msilverman @fwblaw.net, this; lay of November, 2018.
MICHAELR. PIPER
FLORIDA BAR NO.: 710105
Attorneys for Defendant, City of Opa-Locka
JOHNSON, ANSELMO, MURDOCH,
BURKE, PIPER & HOCHMAN, PA
2455 E. Sunrise Boulevard, Suite 1000
Fort Lauderdale, Florida 33304
piper@jambg.com/ cintron@jambg.com
semexant @jambg.corn
n
Page 2 of 2
Filing # 83922342 E-Filed 01/25/2019 02:44:40 PM
IN THE CIRCUIT COURT OF THE 111 ' JUDICIAL CIRCUIT
IN AND FOR MIAMI-DADE COUNTY, FLORIDA
CASE NO.: 2018-028275-CA-01
BARRY E. MUKAMEL, as Chapter 7
Trustee of the Bankruptcy Estate
of Roy Stephen Shiver, Jr.,
Plaintiff,
vs.
THE GREAT CITY OF OPA-LOCKA,
FLORIDA, a municipal corporation,
Defendant,
NOTICE OF HEARING
YOU ARE HEREBY NOTIFIED that the undersigned will call up for hearing the following
matter(s):
DATE: Tuesday, February 26, 2019
TIME: 9:00 a.m.
JUDGE: Honorable Judge Peter R. Lopez
PLACE: Miami-Dade County Courthouse
73 West Flagler Street, Courtroom DCC 1201
Miami, Florida 33130
MATTER: Motion to Withdraw as Counsel
PLEASE GOVERN YOURSELVES ACCORDINGLY.
[Movant hereby certifies that a Kona tide effort to agree or to narrow the issues above has been made or will be made before hearing occurs.]
1
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was SERVED
and FILED through Florida Courts E-filing Portal to Marc A.Silverman,Esq., Counsel for
Plaintiff; Frank, Weinberg & Black, P.L., 7805 S.W. 6th Court, Plantation, FL 33324, and
upon the City of Opa Locka, Attn: Vincent T. Brown, Esq., City Attorney, 780 Fisherman
Street, 4th Floor, Opa-Locka, FL 33054, vtblaw(c bellsouth.net, this 25th day of January,
2019.
/s/Michael R. Piper
Michael R. Piper
Florida Bar No.: 710105
JOHNSON, ANSELMO, MURDOCH,
BURKE, PIPER & HOCHMAN, PA
2455 E. Sunrise Boulevard, Suite 1000
Fort Lauderdale, Florida 33304
Telephone: (954) 463-0100
Facsimile: (954) 463-2444
piper(ajambg.com/ cintron(ajambg.com
2
Filing # 84851908 E-Filed 02/13/2019 11:32:01 AM
IN THE CIRCUIT COURT OF THE 11TH
JUDICIAL CIRCUIT IN AND FOR
MIAMI-DADE COUNTY, FLORIDA
CASE NO.: 2018-028275-CA-01
BARRY E. MUKAMAL, as Chapter
7 Trustee of the Bankruptcy Estate
of Roy Stephen Shiver,
Plaintiff,
vs.
THE GREAT CITY OF OPA-LOCKA,
FLORIDA, a municipal corporation,
Defendant.
NOTICE OF HEARING
TO: Michael R. Piper, Esq.
JOHNSON, ANSELMO, MURDOCH,
BURKE, PIPER & HOCHMAN, PA
2455 E. Sunrise Boulevard, Suite 1000
Fort Lauderdale, Florida 33304
YOU ARE HEREBY NOTIFIED that the undersigned has set down for Hearing
the following:
JUDGE: Honorable Judge Peter R. Lopez
PLACE: Miami-Dade County Courthouse
73 West Flagler Street
Courtroom DCC1201
Miami, FL 33130
DATE: February 26, 2019
TIME: 9:00 a.m.
PLEASE GOVERN YOURSELF ACCORDINGLY.
I HEREBY CERTIFY that a true and correct copy of the foregoing was mailed this
13th day of February, 2012 to the above named addressee(s) and a copy to the office of
the Judge.
FRANK, WEINBERG & BLACK, P.L.
7805 S.W. 6 Court
Plantation, FL 33324
(954) 474-8000
By: /s/ Marc A. Silverman
MARC A. SILVERMAN
Fla Bar No. 144444
Note: I hereby certify that (A) I have made a good faith attempt to resolve this matter
prior to my noticing this motion for hearing and (B) the issues before the Court may be
heard and resolved by the court within 5 minutes.
In accordance with the Americans with Disabilities Act of 1990 (ADA), disabled persons
who, because of their disabilities, need special accommodation to participate in this
proceeding, should contact the ADA Coordinator***, not later than five () business days
prior to the afore-mentioned proceeding. *** Dade County Court ADA, Ellis D. Petigrew,
(305) 375-2006 (Voice), (305) 375-2007 (TDD), *** Broward County Court ADA, (954)
831-6364 (Voice and TDD).** Palm Beach County (561) 355-2431.
IN THE CIRCUIT COURT OF THE 11TH JUDICIAL CIRCUIT
IN AND FOR MIAMI-DADE COUNTY, FLORIDA
CASE NO.: 2018-028275-CA-01
BARRY E. MUKAMEL, as Chapter 7
Trustee of the Bankruptcy Estate
of Roy Stephen Shiver, Jr.,
Plaintiff,
O T)
VS. � '1 -"i F
"
GO
THE GREAT CITY OF OPA-LOCKA,
FLORIDA, a municipal corporation,
Defendant,
r,
ORDER GRANTING WITHDRAWAL OF COUNSEL
THIS CAUSE having come before the court on the motion of Johnson, Anselmo,
Murdoch, Burke, Piper& Hochman, P.A., to withdraw as counsel of record for Defendant,
City of Opa-Locka, and the court having heard argument of counsel and being otherwise
fully advised in the premises, it is
ORDERED and ADJUDGED that said motion is GRANTED. The law firm of
Johnson, Anselmo, Murdoch, Burke, Piper & Hochman, P.A., and the firm's attorneys,
singularly and collectively, are discharged from further representation of Defendant,City of
Opa-Locka, in this matter and the firm and its attorneys, singularly and collectively, shall
have no further responsibility for said representation. It is further
ORDERED that all future pleadings, court filings, and other papers required to be
served upon Defendant, City of Opa-Locka, in this matter shall be served upon: Vincent T.
Page 1 of 2
- n 2OcfcV5 o neW con R1 mus�-
y musk e C'`c an Ar,�e c�� fi erg s APp?rtGnce
Brown,Esq., City Attorney, City of Opa-Locka, 780 Fisherman Street, 4`h Floor, Opa-
Locka, FL 33054; (305) 953-2868, ext. 1225; vtblaw @bellsouth.net.
DONE and ORDERED in chambers at Miarni,Miami-Dade County,Florida this 26`h
day of February, 2019. -
-----y / 4. 1
Pe r . Lopez 1 •
4/ Circuit Judge
cc: All counsel via court's e-filing
ORIGINAL
City of Opa-Locka (via Vincent T. Brown, Esq.) JUDGE PETER R.LOPEZ
Page 2 of 2
IN THE CIRCUIT COURT OF THE
I)�'1 JUDICIAL CIRCUIT, IN AND FOR
Ml ite COUNTY, FLORIDA
Fafr Akct f as —C�-
C� .� t wl'6'�°— 0/� Case No.: `� .—����
4 13ank(Lpitei, c )
-fie Grp Cf o•C co
f ) al
L.�ka. a.,d&t ,
ORDER — T:_
THIS CAUSE having come on to be heard on c2 P b ) I q , Defendant /Plaintiff's
Motion`tU t Leave lc) --- 1' ? /vv.en dopA (07 J t'4
and the Court having heard argument of counsel, and being otherwise advised
9 9
in the Premises, it is hereupon,
ORDERED AND ADJUDGED that said Motion be, and the same is hereby
1. `ellActin+ k41l k 4-11v 1 5 449,15
dkc-7. 40 Ire5 and +0 i, 6 /4()-19,
h i cAse m e c( - i 1,4 a s- of 41w of c (-
1c4 c) rrt'er•
DONE AND ORDERED in Chambers, at M!Con-. / FL.
this 6 day of 'tr .i.kik r. , 20 I `�
_..__ . /. .d,ielL
Circuit Jude
Copies furnished:
y.
ORIGINAL
JUDGE PETER R.LOPEZ
Filing # 85654705 E-Filed 02/28/2019 12:18:36 PM
IN THE CIRCUIT COURT OF THE 11TH
JUDICIAL CIRCUIT IN AND FOR
MIAMI-DADE COUNTY,FLORIDA
CASE NO.: 2018-028275-CA-01
BARRY E. MUKAMAL, as Chapter
7 Trustee of the Bankruptcy Estate
of Roy Stephen Shiver,
Plaintiff,
vs.
THE GREAT CITY OF OPA-LOCKA,
FLORIDA, a municipal corporation,
Defendant.
NOTICE OF SERVICE COURT ORDER DATED FEBRUARY 26,2019
COMES NOW Plaintiff, BARRY E. MUKAMAL, as Chapter 7 Trustee of the Bankruptcy Estate
of Roy Stephen Shiver, by and through their undersigned attorney, hereby files proof of service of the
attached Order on Plaintiff's Motion for Leave to File Amended Complaint and Order Granting
Withdrawal of Counsel.
I HEREBY CERTIFY that a true and correct copy of the foregoing was mailed this 28`h day of
February, 2019 to Vincent T. Brown, Esq., City Attorney, City of Opa-Locka, 780 Fisherman Street, 4th
Floor, Opa-Locka, FL 33054.
FRANK, WEINBERG & BLACK, P.L.
7805 S.W. 6 Court
Plantation, FL 33324
(954)474-8000
By: !s!Marc A. Silverman
MARC A. SILVERMAN
Fla Bar No. 144444
IN THE CIRCUIT COURT OF THE
Zyl JUDICIAL CIRCUIT, IN AND FOR
�/
Micir e COUNTY, FLORIDA 1
ga /"��c kct�..0 e s Case No.: 7 S _(A O
<11 7 Ti,. e of I`� o��� `7
AlA gankr 4P ,
-Tile Rt. SterAti.1 f5A)Prs
Gr r ,
OpR— Locka icr d1 cl ) ,
4
ORDER
THIS CAUSE having come on to be heard on c2 pl,jfq , Defendant' Plaintiff's
Motion " b r Leduc' -tom t-t IP Acq-\eincip4 t p h i--4--
and the Court having heard argument of counsel,and being otherwise advised
in the Premises, it is hereupon,
ORDERED AND ADJUDGED that said Motion be, and the same is hereby
. ::. P. ' 1 , • • v 4. c. 41 ;!
MIN •- - ♦ t " 61, • 0 -F. ar • / - • to
—11 cc Qr6 r.
DONE AND ORDERED in Chambers, at M,ct w, , / Pt
this 6 -47k W7Lr-(.44.1-cl___day of ,20 l i . 1 col
1 I /Apirr-s: , -
/ / CircuitJu•.,V�
Copies furnished: /
l 4086s,#'�'4.
'
IN THE CIRCUIT COURT OF THE 11TH JUDICIAL CIRCUIT
IN AND FOR MIAMI-DADE COUNTY, FLORIDA
CASE NO.: 2018-028275-CA-01
BARRY E. MUKAMEL, as Chapter 7
Trustee of the Bankruptcy Estate
of Roy Stephen Shiver, Jr.,
Plaintiff,
vs.
THE GREAT CITY OF OPA-LOCKA,
FLORIDA, a municipal corporation,
Defendant,
ORDER GRANTING WITHDRAWAL OF COUNSEL
THIS CAUSE having come before the court on the motion of Johnson, Anselmo,
Murdoch, Burke, Piper& Hochman, P.A., to withdraw as counsel of record for Defendant,
City of Opa-Locka, and the court having heard argument of counsel and being otherwise
fully advised in the premises, it is
ORDERED and ADJUDGED that said motion is GRANTED. The law firm of
Johnson, Anselmo, Murdoch, Burke, Piper & Hochman, P.A., and the firm's attorneys,
singularly and collectively, are discharged from further representation of Defendant, City of
Opa-Locka, in this matter and the firm and its attorneys, singularly and collectively, shall
have no further responsibility for said representation. It is further
ORDERED that all future pleadings, court filings, and other papers required to be
served upon Defendant, City of Opa-Locka, in this matter shall be served upon: Vincent T.
Page 1 of 2
_._.,.__._ .... ..........._.....�.... ._....__....___..._.._.......__'__ ...,_ __.,._.__...._.........__ate.:_._....__...___�.___.._.._. ___... .._.....
CAT ni0Q+ e fifer a+n lort.e (2).1-1-114n 20(210q5 or neul CePn-1 mUs-1-
Brown, Esq., City Attorney, City of Opa-Locka, 780 Fisherman Street,4`h FIoor, Opa-
Locka, FL 33054; (305) 953-2868, ext. 1225; vtblaw@bellsouth.net.
DONE and ORDERED in chambers at Mi ami,Miami-Dade County,Florida this 26th
. r cp%
day of February, 2019. , • •:'�
Pe r ° . . ?+ezgti,
Circuit Jud l cp
cc: All counsel via court's e-filing ORIGINAL
City of Opa-Locka (via Vincent T. Brown, Esq.) JUDGE PETER R.LOPEZ
Page 2 of 2
Filing # 84603642 E-Filed 02/07/2019 04:34:01 PM
IN THE CIRCUIT COURT OF THE 11TH
JUDICIAL CIRCUIT IN AND FOR
MIAMI-DADE COUNTY, FLORIDA
CASE NO,: 2018-028275-CA-01
BARRY E. MUKAMAL, as Chapter
7 Trustee of the Bankruptcy Estate
of Roy Stephen Shiver,
Plaintiff,
vs.
THE GREAT CITY OF OPA-LOCKA,
FLORIDA, a municipal corporation,
Defendant.
PLAINTIFF'S MOTION FOR LEAVE TO FILE AMENDED COMPLAINT WITH
MEMORANDUM OF LAW IN SUPPORT THEREOF
Comes now, BARRY E. MUKAMAL, as Chapter 7 Trustee of the Bankruptcy
Estate of Roy Stephen Shiver ("Plaintiff') by and through his undersigned counsel,
and files this, his Motion for Leave to File Amended Complaint against Defendant,
THE GREAT CITY OF OPA-LOCKA, FLORIDA, a municipal corporation
("Defendant") and in support thereof states:
1. Plaintiff, is the Chapter 7 Trustee of the Bankruptcy Estate of Roy
Steven Shiver, Jr., is the duly appointed and acting Chapter '7 trustee in the
pending bankruptcy proceedings related to Roy Stephen Shiver, Jr. (::Shiver"), to
wit: the Chapter 7 bankruptcy case pending before the United States Bankruptcy
Court for the Southern District of Florida, Miami Division, styled In re Roy Stephen
Shiver, Jr., Debtor, Case No.: 17-24922-RAM (the "Bankruptcy Proceedings"), and
is sui Aids in all respects. As bankruptcy trustee, the Plaintiff is entitled as a matter
of bankruptcy law to pursue for the benefit of Shiver's creditors any and all claims
1
and causes of action held by Shiver when his bankruptcy case was commenced
on December 15, 2017. See, e.g., 11 U.S.C. §§ 541 & 704.
2. On or about August 20, 2018, the Plaintiff filed its Complaint against
the Defendant, seeking damages against the Defendant for breach of contract.
3. On or about September 21, 2018, the Defendant filed its Answer and
Affirmative Defenses to the Complaint. However, Plaintiff seeks leave to amend
its complaint to revise its claim against the Defendant.
4. Rule 1.910(a), Fla. R. Civ. P., has repeatedly been interpreted by
both Florida appellate courts and the Supreme Court of Florida, to evince a policy
of"liberality" in the amendment of a party's pleadings so long as not abused by the
parties. In Marquesa at Pembroke Pines Condominium Association, Inc. v. Powell,
183 So.3d 1278 (Fla. 4th DCA, 2016), the Fourth District recognized this long-
standing policy and stated that: This rule "reflect[s] a clear policy that, absent
exceptional circumstances, requests for leave to amend pleadings should be
granted" (citing Thompson v. Jared Kane Co., Inc., 872 So.2d 356, 360 (Fla. 2d
DCA 2004)). Further, the Court went on and cited Dausman v. Hillsborough Area
Real Transit, 898 So.213, 215 (Fla 2d DCA 2009) for the proposition that "[I]eave
to amend should be freely given, the more so ... when the amendment is based on
the same conduct, transaction and occurrence upon which the original claim was
brought." Marquesa at 1279. Finally, the Fourth District re-affirmed the well-
settled principal that a trial court should liberally grant a request to amend, where
that request is based upon an amendment sought which arises out of the same
2
conduct, transaction, and occurrence described in the original complaint, and
where the privilege has not been abused, nor is it futile. Id. at 1280.
5. Clearly, the Plaintiff has not abused the right to seek amendment in
this case. Nor would amendment be futile. The proposed Amended Complaint
attached hereto as Exhibit "A" does not set forth any new claims that are distinctly
different/not otherwise having factually been mentioned in/taken from the
underlying conduct, transactions or occurrences previously plead. Rather the new
claims are based upon clarifications to that which was plead in the original
Complaint and constitute a clarification of Plaintiffs legal theories based upon the
same core set of facts.
6. This matter is not set for trial and there will be no prejudice to adding
the counts in the amended complaint at this time although raised generally in the
prior complaint. As such, amendment of the Plaintiffs Complaint should be
permitted, and leave to file the Amended Complaint should be granted.
WHEREFORE, Plaintiffs respectfully request that the Court grant the instant
Motion in its entirety, granting Plaintiff leave to file his proposed Amended
Complaint against the Defendant; enter an order requiring the Defendants to reply,
respond or otherwise react to the Amended Complaint within a specified amount
of days; and enter any other such order that the Court deems just and proper under
the circumstances.
3
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I have sent a true and correct copy of the
foregoing to via email/e-filing to all of the persons identified on the attached service
list, this 8th day of February 2019.
FRANK, WEINBERG & BLACK, P.L.
Counsel for Defendant
7805 S.W. 6th Court
Plantation, FL 33324
Telephone: (954)474-8000
Fax: (954)474-9850
By: /s/ Marc A. Silverman
Marc A. Silverman, Esq.
msilverman@fwblaw.net
Florida Bar No.: 144444
4
BARRY E. MUKAMAL, as Chapter 7 Trustee of the Bankruptcy Estate of
Roy Stephen Shiver vs. THE GREAT CITY OF OPA-LOCKA, FLORIDA, a
municipal corporation
Case No.: 2018-028275-CA-01
SERVICE LIST
Michael R. Piper, Esq.
JOHNSON, ANSELMO, MURDOCH,
BURKE, PIPER & HOCHMAN, PA
Attorneys for Defendant
2455 E. Sunrise Boulevard, Suite 1000
Fort Lauderdale, Florida 33304
Telephone: (954) 463-0100
Facsimile: (954) 463-2444
piperOjambg.com
semexant @jambg.com
5
IN THE CIRCUIT COURT OF THE 11TH
JUDICIAL CIRCUIT IN AND FOR
MIAMI-DADE COUNTY, FLORIDA
CASE NO.: 2018-028275-CA-01
BARRY E. MUKAMAL, as Chapter
7 Trustee of the Bankruptcy Estate
of Roy Stephen Shiver, Jr.,
Plaintiff,
vs.
THE GREAT CITY OF OPA-LOCKA,
FLORIDA, a municipal corporation,
Defendant.
AMENDED COMPLAINT
Plaintiff, BARRY E. MUKAMAL, as Chapter 7 Trustee of the Bankruptcy Estate of
Roy Steven Shiver, Jr. ("Plaintiff') by and through his undersigned counsel, sues the
Defendant, THE GREAT CITY OF OPA-LOCKA, FLORIDA, a municipal corporation
("Defendant") and states:
GENERAL ALLEGATIONS
1. This is an action for breach of contract and for damages in excess of
$15,000.00, exclusive of attorneys' fees, costs, and/or interest within this Court's subject
matter jurisdiction.
2. Plaintiff, BARRY E. MUKAMAL, as Chapter 7 Trustee of the Bankruptcy
Estate of Roy Steven Shiver, Jr., is the duly appointed and acting Chapter 7 trustee in the
pending bankruptcy proceedings related to Roy Stephen Shiver, Jr. ("Shiver"), to wit: the
Chapter 7 bankruptcy case pending before the United States Bankruptcy Court for the
1
Southern District of Florida, Miami Division, styled in re Roy Stephen Shiver, Jr., Debtor,
Case No.: 17-24922-RAM (the "Bankruptcy Proceedings"), and is sui juris in all respects.
As bankruptcy trustee, the Plaintiff is entitled as a matter of bankruptcy law to pursue for
the benefit of Shiver's creditors any and all claims and causes of action held by Shiver
when his bankruptcy case was commenced on December 15, 2017. See, e.g., 11 U.S.C.
§§ 541& 704.
3. Defendant, THE GREAT CITY OF OPA-LOCKA, FLORIDA, as all times
material hereto is and was a municipal corporation and political subdivision of the State
of Florida, and is sui juris in all respects.
4. All conditions precedent to the bringing of this action have been met, have
occurred, or have been waived.
5. All transactions and/or occurrences giving rise to this action arose and
transpired in Miami-Dade County, Florida, and as such, venue is proper in this court
pursuant to Chapter 47, Fla. Stat.
FACTUAL ALLEGATIONS
6. Shiver was employed by the Defendant in the position of City Manager
pursuant to that certain Employment Agreement Between the Great City of Opa-Locka,
Florida and Stephen Roy Shiver, City Manager dated September 2, 2015 (the
"Employment Agreement"), which had a definite term of employment as set forth in
paragraph 1 thereof, to wit: an initial term of thirty (30) months (from September 2, 2015
through February 28, 2018). A true copy of the Employment Agreement is attached
hereto as Exhibit "A" and fully incorporated herein by this reference.
2
7. Pursuant to the terms of the Employment Agreement, in the event that the
Defendant terminated Shiver prior to the end of his initial term (or prior to the end of any
additional term as contemplated by paragraph 1B of the Employment Agreement), he was
to be paid "all compensation that shall include salary, all accrued benefits including sick
and vacation days, and any unpaid car or expense allowances all as permitted by Florida
Statutes Section 215.425, which provides that severance pay provided may not exceed
an amount greater than twenty (20) weeks of compensation." Thus, pursuant to the
express terms of the Employment Agreement, upon termination, Shiver was entitled to
be paid all salary that would have come due under the 30 month term of the Employment
Agreement set forth in paragraph 1A thereof.
8. Apparently, almost immediately after Shiver assumed the position of City
Manager, he identified serious issues related to the financial condition of the Defendant,
including numerous and significant unpaid invoices, and other financial inconsistencies in
the Defendant's finances and informed the Defendant's duly elected officials of same, as
well as Shiver's obligation to report the financial issues to Florida's Governor pursuant to
§218.503, Fla. Stat., and announced his findings at separate budget hearings of the
Defendant to no avail.
9. Thereafter on or about October 22, 2015, Shiver sent Florida's Governor,
Rick Scott, a detailed letter(the"Letter") pursuant to§218.503, Fla. Stat., raising the same
financial concerns that were apparently revealed to him after settling into his position with
the Defendant as its City Manager. A true copy of the October 22, 2015 Letter is attached
hereto as Exhibit "B" and fully incorporated herein by this reference. In the Letter, Shiver
3
detailed the Defendant's "challenging financial condition," as well as some of the positive
changes that were being made to remedy the problems. Shiver's self-stated justifications
for the Letter are set forth therein and fully incorporated herein.
10. In response to the Letter, Defendant's Mayor, Myra Taylor, informed Shiver
that she and the Defendant's Commissioners had gotten together and were going to
"force" Shiver's resignation in retaliation for Shiver's sending the Letter to Governor Scott.
In response, Shiver pointed out that the "get together" described by Mayor Taylor was an
illegally held meeting "in the shade," in violation of Florida's Sunshine Law in and of itself.
11. Undeterred by the illegality of the meeting, however, Mayor Taylor, upon
information and belief, directed Commissioner Santiago (of Defendant's City
Commission) to place an agenda item on the October 27, 2015 Special Commission
Meeting Agenda (a true copy of said Agenda which is attached hereto as Exhibit "C" and
fully incorporated herein by this reference), and more particularly, Agenda items 6(a) and
6(b), which stated:
6(a) A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF
OPA-LOCKA, FLORIDA, TERMINATING THE EMPLOYMENT WITH ROY
STEPHEN SHIVER AS CITY MANAGER OF THE CITY OF OPA-LOCKA,
FLORIDA: PROVIDING FOR INCORPORATION OF RECITALS,
PROVIDING FOR AN EFFECTIVE DATE; and
6(b) A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF
OPA-LOCKA, FLORIDA, APPOINTING AN INTERIM CITY MANAGER
EFFECTIVE IMMEDIATELY, PROVIDING FOR INCORPORATION OF
RECITALS, PROVIDING FOR AN EFFECTIVE DATE
12. Apparently, during the Special Meeting on October 27, 2015, no valid
reason for the termination of Shiver's Employment Agreement was articulated, and
certainly, no event of "cause" was articulated. The matter was tabled and the issue of
4
Shiver's termination was brought up at the November 24, 2015 Special Commission
Meeting. After Mayor Taylor articulated that, due to the sending of the Letter, she could
no longer work with Shiver, the Commission voted to terminate the Employment
Agreement by a 3-1 margin. A true copy of the minutes from the November 24, 2015
Special Commission Meeting reflecting the resolution to terminate Shiver is attached
hereto as Exhibit "D" and fully incorporated herein by this reference.
13. While the November 24, 2015 termination of Shiver was accomplished by
the Defendant, it is clear that it was not justified in accordance with the terms of the
Employment Agreement, which provides that the Employment Agreement "may only be
terminated if the City Manager abandon [sic] his job or is formally charged for criminal
conduct." Cleary, this was not the basis for Defendant's termination of the Employment
Agreement, and as such, Defendant's termination thereof was a material breach of the
Employment Agreement. Thus, Shiver was terminated without cause.
14. Pursuant to the terms of the Employment Agreement, Shiver was/is entitled
to be paid the compensation due him under the Employment Agreement as set forth in
Sections 1A, 3A, and severance pay in accordance with paragraph 10 of the Employment
Agreement, to wit: the remainder of the compensation due to him for the remaining term
of the Employment Agreement, including, all of his bargained for compensation payable
to Shiver is set forth in Sections 3 through 8 of the Employment Agreement, to wit: (a)
annual base salary in the amount of $150,000.00; (b) an annual contribution of twelve
percent(12%) of Shiver's base salary into Defendant's ICMA-RC Retirement Plan; (c)the
Defendant's executive insurance package for himself and his dependent family members,
5
or at Shiver's election in lieu of receiving said benefits an additional $600.00 per month;
(d) payments for Shiver's disability insurance; (e) the premiums on a term life insurance
policy with a benefit of two (2) times Shiver's base salary; and (f) all other fringe benefits,
including, but not limited to accrued holiday, annual and sick leave.
15. At the time of Shiver's termination from the Defendant, there were 26
months, 8 days remaining in the initial term of the Employment Agreement. Thus, the
remaining compensation due under the definitive initial term of the Employment
Agreement was the amount of$328,287.67.
16. As a direct and proximate result of the Defendant's breach of the
Employment Agreement, Shiver suffered damages in excess of$15,000.00, exclusive of
attorney's fees, costs, and/or interest.
17. To the extent that the Court determines that in addition to the
aforementioned sums, Shiver was/is entitled to any additional amounts as "severance
pay", Shiver is additionally entitled to twenty (20) weeks of"severance pay" (to the extent
not already provided to Shiver in the normal course of Defendant's business) as provided
for in §215.425(4)(d), Fla. Stat., which provides, in pertinent part, that the term "severance
pay" as referenced in the Employment Agreement, means the actual or constructive
compensation, including salary, benefits, or perquisites, for employment services yet to
be rendered which is provided to an employee who has recently been or is about to be
terminated."
6
18. Plaintiff has engaged the undersigned attorneys to represent him in this
action and has agreed to pay them a reasonable fee for their services and to reimburse
them for all costs expended in furtherance of said efforts.
19. In addition to the aforementioned compensation, the Employment
Agreement provides in Section 9 A(2) thereof that, in the event of litigation to enforce the
terms of the Employment Agreement, the prevailing party shall be entitled to recover its
attorney's fees and costs from the non-prevailing party.
WHEREFORE, Plaintiff, BARRY E. MUKAMAL, as Chapter 7 Trustee of the
Bankruptcy Estate of Roy Steven Shiver prays that this Court enter a final judgment in
favor of Plaintiff and against the Defendant, THE GREAT CITY OF OPA-LOCKA,
FLORIDA, a municipal corporation:
a. finding that Defendant materially breached the Employment Agreement;
b. finding that Defendant's breach(es) of the Employment Agreement directly
and proximately caused damage to Shiver and Plaintiff, as his successor,
and that as the result thereof, Plaintiff is entitled to recover from Defendant
the amounts identified in paragraphs 15-17 above, which are amounts
within this Court's subject matter jurisdiction;
c. Awarding Plaintiff his reasonable attorney's fees and costs in connection
with the prosecution of this action; and
e. Granting such other relief as the Court deems appropriate and just under
the circumstances.
7
CERTIFICATE OF SERVICE,
I HEREBY CERTIFY that I have sent a true and correct copy of the foregoing to
via email/e-filing to all of the persons identified on the attached service list, this 8th day of
February, 2019.
FRANK, WEINBERG & BLACK, P.L.
Counsel for Defendant
7805 S.W. 6th Court
Plantation, FL 33324
Telephone: (954)474-8000
Fax: (954)474-9850
By: Is/ Marc A. Silverman
Marc A. Silverman, Esq.
msilverman@fwblaw.net
Florida Bar No.: 144444
8
BARRY E. MUKAMAL, as Chapter 7 Trustee of the Bankruptcy Estate of Roy,
Stephen Shiver vs. THE GREAT CITY OF OPA-LOCKA, FLORIDA. a municipal
corporation
Case No.: 2018-028275-CA-01
SERVICE LIST
Michael R. Piper, Esq.
JOHNSON, ANSELMO, MURDOCH,
BURKE, PIPER & HOCHMAN, PA
Attorneys for Defendant
2455 E. Sunrise Boulevard, Suite 1000
Fort Lauderdale, Florida 33304
Telephone: (954) 463-0100
Facsimile: (954) 463-2444
piper@jambg.com
semexant@jambg.com
9
EMPLOYMENT AGREEMENT EMENT.# E 3.' EEA`3
The Great City of‹)pa-los .a..,Florida AND Roy Sew tti Shiver,City Manager
This Agreement., made and. entered into this September . L,2Oi:a by and
between The Omit City of ()pa-loch, Florida, a municipal :o Sor ati
(batinafter t^el d "City') a r d Roy Stephert Shiver, (%3,e tinafcr called "City
Manager"),
Section it Term
A. The Mina!Term of this Agreement shall be for a period of thirty Oa) months from
Sept,-mbe 2, 5115 - Fvbr ir Alial the expiration of the Initial Tema,
the City shall.have the option to renew ew the term of this Ay re4Intent.for an additional
;wive(12) month period.
In Ly : event. that the City MS nagvz is terminated, as defined in Section 9
of this Agreemeztt,the City Manager shall he entitled to&li c mpE.nsation
�yh �•.•;C,r..•i
that shall include salary, £ E � Mi benefits x x3 T4 S£: and•y C la c R 'r RSVP
c>a \ and any :.n . w car or e:, ii e Rl? LS�t.i4 all D aF1£inL £ .'•.:
t•
a'`'fx�•K:K$
Ficiida Statutes SoC pion 2ii' 425.. Which provides that severance pay
orovided may not exceed en amount ?M"t ater than twenty (20) weeks
compensation.
Section 2 Dntim and Authnrity
A. TheC it gree`. to em*y 1::toy Stephen S b'._. as City. .t' anagei '.
the •�n'S^•.• a for City t.
perform ss £ :sN �.:£ t✓i,.. ari and £n13 r. specified the t....s.-s".'�s•3 £ix the .,Yt; of
Z,, p2-k. a and to perform other legally +✓ i^s f ie Zid proper duties and
functions without tout ` t r erecee.
„ .y he City Manager r 85^ .h:rf administrative officer of the City and Fb
Fi£
> the e in the job description as s
�ut.�.£gE �.�' perform aS�� duties as "�.3I•.9�.:Y•Ii:v� #.it �.SGO• �}'f_i.`s '1:s4..•..ra��`$Cr31 =3C set
forth in the Caity's ch rte: and/or ordinances ,"'..ad may be lawfully
assigned by the City and f-i i with n lawful
directives, courtly, state, and federal law, City policies, rules and
ordintoces as they exist or may n red ter be amended,
C.to shall be the duty of the City Manager to employ,oy< direct, assign,
reassign, evaluate. hid o accept res`tgna i n a all of the employees of
vat s�f�., 11 to t � of 1 � L
the City under his supervision consistent with the City :rule, policies,
ordinances,charter,county, to atra.ter and federal law.
Pat; r of 7
D. It shall also be the duty of the City Manager to organize,reorganize, and
arrange the staff of the City and to develop and establish internal.
regulations, rules, and procedures which the City Manager deems
necessary for the efficient and effective operation of the City consistent
with the lawful City directives,policies, ordinances, city charter, county,
state, and federal law.
E. The City Manager shall perform the duties.of city manager of the City
with reasonable care,diligence,skill and expertise.
P.AII duties assigned to the City Manager by the governing body shall be
appropriate to and consistent with the professional role and responsibility of the
City Manager.
. G.The City Manager cannot be reassigned from the position of City Manager to
another position without the City Manager's express written consent
H.The City Manager or designee shall attend,and shall be permitted to attend,all
meetings of the governing body,both public and closed,or otherwise consistent
with state law.
I. At the direction of the City Commission, the City Manager may also serve as
the Opa locka Community Redevelopment Agency Executive Director.
Section 3: Compensation
A. Base Salary:City agrees to pay City Manager an annual base salary of$150,060,
payable at the same time that the other employees of the City are paid.
H. The City shall execute all necessary agreements on behalf of the City
Manager's retirement benefit participation in ICMA-RC Retirement Plan.
(The City will pay an amount equal to twelve percent (12%) of the City
Manager's annual base salary).
Section 4:Health,Disability and Life Insurance Benefits
A. The City Manager shall receive the City's executive insurance package for
himself and dependent family members;including health insurance(PPQ Plan),
other medical insurance available to other employees, life insurance,disability,
vision,and non-cosmetic dental insurance. At his option,the City Manager can
receive the above stated coverage from the City or in lieu of receiving the
coverage may receive$60D per month.
B. The City agrees to put into force and to make required premium payments for
Page 2 of 7
disability coverage for the City Manager.
•
C. The City shall pay the amount.of premium due for term life insurance in the
amount of two (2)times the City Manager's annual base salaryt including all
increases in the base salary,or at the City Manager's option,the City agrees to
pay the full amount of the premium due for a Whole life insurance policy with
a death benefit equal to the City Manager's base salary.
D. All provisions of the City Charter and Code„and regulations and rules of the
City, relating to annual and sick leave, retirement and pension system
contriution, holidays. and other fringe benefits (i.e. GAP insurance) and
working conditions as they now exist or heteafter may be amended,also shall
apply to the City Manager as they would to other employees of the City; in
addition to said benefits enumerated specifically herein for the benefit of the
City Manager, except as herein provided
Section 5: Vacation and Skit:
The City Manager shall accrue fifteen (1S) sick leave days per year and twenty-five
(25)vacation leave days per year.
Section 6:Automobile
The City agrees to provide the City Manager with an automobile and fall coverage
automobile insurance during:the term of this Agreement.
Section 7:Retirement
The City shall execute on behalf of the City Manager's retirement benefit
participation in FRS(The Florida Retirement System)plan.
Section S:General Business Expenses
A. The City shall budget and pay for professional dues, travel, short courses,,and
seminars.
B.City shall pay for or reimburse the City Manager for all ordinary,necessary and
reasonable business expenses Incurred or paid. by the City Manager in
furtherance of City's objectives, all of which shall be reimbursed and paid in
accordance with Qty's policies and procedures of general application.The City
shall provide the City Manager with a credit card to be used by the City
Manager to pay for these expenses.
C. Recognizing the importance of constant communication and maximum
productivity, the City shall provide the City Manager a laptop computer,
'Page 3of7
Softy a:e, ::Sidd a monthly allowirice re oE'it h,'ratt::d fifty donuts ($ISO) For
rnobiii:
phone.
'e `dni:oi: ££2t
A. This Agreement may only be terminated if the City Manager abr^.ntio't his job
or is for ally charged for crfrri>a1s con duet. For the purpose of this
Agreement, r a occur: :<
1 t.n c' the ..a.f Commission SsF�3 Y oet� terminate the City
Miant.ger in accordance with this Agreement ment at a prope£iy posted and
duly authorized public me;`t2.ng.
2, t the event lawsuit is initiated to e£ititfc. . the t:tnn i of thi) :3 seInn?:t,
In t:i S cl; i afE ir:
the prevailing party shalt be e»'.ie fi at�r e}ts fec nd suit cost:;.
B.The City yshall not ri:C tv.e the. a salary,comber' tItion ..r any Fewer financial.
2 eneht o3.the City it LiFii:'"'.�>s; l s r't,tt- a r.ea
ty ->c the Manager and,if s• such,action shall t:.'Lit..�ci:�..F::�i�}:-...ccE=iE
of this Agreement.
s.nt ma 10: Severance
Seve aini`e *,hail be paid to the City ? ii:iiig:'..T when e nip oy ,.,.. t is icifai:at'.::.'•,
wit
til.00? cause as specified in this Agra erii ut and piasuant to Florida Statutes
$:,.c.215.425 as ci. ie Section:ion 1 (;'); to .?e .;3.17;-;:? F:t ,.i3 .Y,fc.e�:.s of salary? nc..t less
haotorty-five (4a), out not rile e than sixty 60 days from the Bate of tre
tl:z:'"'t"G-}.:.Ftftl and in equal i-„•!ondlly installments.,
Stier Seeitm 11: Re:4,na siott
f1
if either party tc:l%T inat(5 tile agreement,that party shall rr vide a minimum of thirty
(, 0):fir" not inn.
S etion 12: Hon s of Work
The City recognizes t Tat the City ? age i'E u s t d tea great deal of time outside
the/Min J Office houra on i.sines for the City,and to that cad City:Manager ghul
be allowed to establish an appropriate work schedule. The schedule shall be
appropriate to the needs of the City and ,=1.t2.11 allow the City Y }itge. to faithfully
perform his as.3ig cd duties and r£sporisihiIik .
Section 13:Ethical o:mitnients
The City Manager will at all times uphold t ta tenets of. thifsj ti: City
A > ^. 1 c z financial x*, s l i
Manager Sfi,`3:! not�'i1�3c3;S::i•'i:E:iC�£ii:3�:?>£t.3�{:, �iti+iiF4•e:3.t`.£)fit`fi�.:iL..E:r:i;a, ..I,�Xf or K:;£i:mc>:lc.e
Page 4 of 7
petitions, or participate in fund-raising activities for individuals seeking or holding
elected office, nor seek or accept any personal enrichment or profit derived from
confidential information or misuse of public time. Provided, however, the City
Manager may attend fundraisers for issues or candidates. excluding City of Opa-
locks issues or Mayor/Commission seats.
The City shall support the City Manager in keeping these commitments by refraining
from any order,direction or=quest that would require the City Manager to violate
the Code of Ethics. Specifically, neither the governing body nor any individual
member thereof shall request the City Manager to endorse any candidate,,make any
financial contn'bution,sign or circulate any petition,or participate in any fund-raising
activity for individuals seeking or holding elected office,nor to handle any natter of
p.
•
The City Manager shall comply with Chapter 1 12.Florida Statutes and section 2-
1 l.l,Miami-Dade County Conflict of Interest and Code of Bthic s..
Semen 14:Outside Activities
The employment provided-for by this Agreement shall be the City Manager's primary
employment.The City Manager may continue to receive residual compensation from
activities prior to.this Agreement Recognizing that certain outside consulting or
teaching opportunities provide indirect benefits to the City and the community,m unity, the
City Manager may elect to accept limited teaching, consulting or other business
opportunities with the understanding that such arrangements must not cease a
conflict of interest nor constitute interference with his responsibilities under this
Agreement.
Section 15:Indemnification
A The City shall defend,indemnify and pay all judgments or settlements in regard
to any personal liability arising out of and in the scope of the CSty Manager's
responsibilities, to the fullest extent authorized by Florida Statutes, and other
laws, and in accordance with the City Opa-locka Code of Ordinances, in
addition to any insurance purchased by the City. The City agrees to pay all
reasonable litigation expenses of the City Manager throughout the pendency of
any City of Opa-kolas litigation to which the City Manager is a party as'a result
of acts or omission within the course and scope of his employment,witness or
advisor to the City. Such expense payments shall continue beyond the City
Manager's service to the City as long as litigation is pending.
11: Nothing in this section shall constitute a waiver of sovereign immunity or a
waiver of any other defense or immunity to such lawsuits.
Page Sof7
C. Nothing in this section shall gate any private right of action against the
City by any third party.
D. Nothing in this section shall provide. for any defer, indemnification or
payment if the City Manager acted in bad faith,with.malicious purpose,or in
a manner exhibiting wanton and willful disregard of human rights,safety,or
property.
Section 16: Bonding
The City shall bear the full cost of any fidelity or other bonds required of the City
Manager under any law or ordinance.
Section 17:Cam'Terms and Conditional efIhrtployinent
A The City, only upon written agreement with City Manager, approved by
resolution,shall fix any such other terms and conditions ns of employment.as it
may determine from,time to time„ relating to the performance of the City
Manager,provided such terms and conditions are not inconsistent with or in
conflict with the provisions of,the City Charter,Ordinances or any state, or
federal law.
B. Upon the texminadon of this Agreement for any mason,the City shall enter
into a separate Agreement with Roy Stephen Shiver, with a term of not less
than two(2)months for management consulting relating to the traesition of the
position of City Manager, and the compensation shall be At the rate of
compensation, including all benefits as Roy Stephen Shiver received as City
Manager.
Section 18:General ProvlsIona
A. integration. This Agreement sets forth and establishes the entity
understanding between the City and the City Manager relating to the
employment of the City Manager by the City. Any prior discussions or
representations by or between the City and the City Manager are merged
into and rendered null and void by this Agreement The City and the*qty
Manager by mutual written agreement,approved by resolution of the City
Commission,may amend any provision ofthis agreement during the life of
the agreement. Such amendments shall be incorporated and made a part
of this agreement.
B. Binding Effect. This Agreement shall be b nd'rag on the City and the City
Manager as well as their heirs,assigns,executors,personal representatives
and successors ininnterest.
Page 6 of
c. Effective Date This Agreement shall become effective on
September jitC. .2015.
D. Severability. The invalidity or partial invalidity of any portion of this
Agreement will not affect the validity of any other.provision. In the event
that any provision of this Agreement is held to be invalid, the remaining
provisions shall be deemed to be in full force and effect as If they have been
executed by both the City and the City Mager subsequent to the
expungement or judicial modification of the invalid provision.
B. This contract shall be governed by the laws of the state of Florida and
venue shall be in Hand-Dade County. Florida.
Read and Approved as to Form,Language,Legality and Execution thereof
Vincent T.Brown,Esq.
The Brown Law Group,LLC
City Attorney
Executed on September. I ,2015
Myra T or, :y
City of Opa- ka,FL
,464;-
• Bxod an 'tom.2015
Ra . -' Shiver
Page 7 of7
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Ofilm.: at) - 53-2.1
30S-953-2'a:a
Fax: Zt3S-fs-63-2S70
Ocrokle,r 22,205
ki-1,.!Stera Shive.c,Jr.,City NIMI;i1e,..-
City of Ora,.locica,Florid kE
CitY Hall 70 Fisherman Stet
Opa.locita.,r torida 33054
The lionv.'abb..,Governer Rick Scott Via Elmil ri.ies..Setttt@EOCI,IvtyFloritia.corn
Rate of Florida Governor's Office
zttl S.Niontzle, Street
Tlialla,,-.'ice,Florida 32399
Re: City of opa-locka,Flocicia,City Maltaf,,er notice of financial urgency aod request to roect
De.^...:Go'verrior Scott:
On Sopt,ember ',.. 2015,just-ti...e.selKs ago,the Opa-lock,:.,, City !...-ommit:sion aelected and ct‘ntrceted
,;vith rrpe to serve ai their City '‘elanagt.'r. Now that Nu had these.vveel,..ti of experience here, I am
duty bound to inform you that I aill eXtiVillelY co corned about the. City'5 current finatiCifti
pOititiCitl. 1 IXIlieVe, tmdcr Florida. Statute Section 213,503(1) and (2) — Determination of
fin/tacit:I emergency; 1 ITI:i!..;.t bring City'S CI,liTeTit ErlitfiCiai COI-Ail-v:011 to your atmdiqn;i.snd, thus I
i-(,:it2st c.:IMetin with you o,, your ataff ilt the f:trliest-miveniencf:.next week,
Altholigh I need to advi:te you of the rz..':,.dity of the City's clAien{,,.ing finial condition, i Zrst
,Nent u.?poiot r..,,,ot to you some of the poitive fis,,:ai chant..",es,<=fo've atade for the city 1-;ovectItnent
sinct.t niy hire. I w-ant you to know that, a the IM'W City Manager, and with the ppoll of the
Mayor and C0,111411iVitOri, 1 haVt?, been able to ;take significant inroads. to gnicItly rectify our
financial onti; on,
Since my emptOyment, I il.ilve and continue to lake. 11%:1),S, with the Mayor. and Commission, to
size the shi:f*and shore thiniis up:Ind, I tk'seribe some of thosn efibrts below. However,I
,,,,:ant to be ckar, the nude of the current financirtl situation warant s!my nt.....q.itioation a.,.. in
my r...rofessionai judgment the City has td eortain sections of}7.S. Stx.Ilon 21 ,.!..',03 by tho
following veecat conditions:
I Loc;,:.i goveramttnml entitics ,.. Alan be .ittbject to review ant-1 oversight by the Governor ...
tvilen ay one of the foiloAving conditions occurs:
(b)The City's f;Illtim to ;..lay ufieollie.-...tecl claims il-ctm:::P.!(litr.”,,:i. within 90 days after the claim is
presented, a:fa re,sult of a tack of Inads.
cur 14}10.,7;Wilr.itertn44t Stzurt OPA.-LOCKA,FLOILIDA ::$:-..: 4( O5) -21r1.1.
AN Eqt.tAL OPPCIOUNKN a4PLQYER rttztl Ot);IS NO1 OISk."9.1:11fig-M ON TM:attStS OF liANDir *. '''' ...':.:n ',.,',. ..F:
., ....,...„... --.F......:...7.,.:.,,,
i
XIIIBIT .k.)..\1.. -.,
f'a
(c)Failure to transfer at the appropriate time,due to tack of fluids:
2. Employer and employee contributions for:
b. Any...benefit plan of an employee.
Further,the City is currently battling triggering paragraph(d)which states:
(d) Failure for one pay period to lay,due to lack of fiords: _..�.
1. Wages and salaries owed to employees;or
2, Retirement benefits owed to former employees.
On the positive side,while I walked into the City Manager position at budget time with an over
$900,000 budget gap,at our final budget hearing on September 29,2015,1 presented a balanced
budget which the Mayor and City Commission adopted. It substantially reduced our employee
position count by 22%saving over$1 million in personnel expenses. And,for the first time in
four(4)yens,I was able.to balance their budget without significant borrowing. My p ofessiostat
team found an additional S400,000 in operating expense reductions,as well as missed existing
revenue and identifying legitimate new revenues expected this current year of$600,400. To feel
comfortable with my recommendations,as my hire date was during the final stage of the annual
budget approval process,I immediately brought in outside financial consultants verb in dealing
with financial crisis,to ensure the accuracy and integrity of the data and ikon used in my
proposed and final adopted FY 2015-2016 budget.
However,as I state above,the City continues on the brink of f nancial urgency and below,in full
disclosure,are some additional facts.
Due to numerous changes in City Managers and top staff,poor decisions over recent years have
led to today's major cash flow crisis. The City remains challenged in paying its bills timely and,
every two weeks is challenged just to meet staff payroll needs. The past practice 9f questionable
transfers between City funds has,in part,led to our new,unaudited financial statements showing
a "S3,839,245 overdrawn cash liability" in our Governmental Funds as of just this past
September 30, 2015. Our annual City budget is small and such liabilities, although not
impossible to overcome, make for an extremely difficult short term financial future if we are
unable to negotiate and stay the course I have mapped out. The City's Fiscal Year 2014 financial
condition was found to be deteriorating by our auditing firm, and reported in the 2014
Comprehensive Annual Financial Report (CAFR)not only for 2014, but also as a repeat audit ,
finding from their Fiscal Year 2013 finding. Our auditor stated in the last(2014) CAFR that
"The City of Opa-Locka was not determined to be a low-risk auditee" a passive statement
regarding a very serious matter, in my opinion. 'In closing, I have inherited a city operation
where outside forces and lack of consistent management have significantly impacted the
financial health of the organization.While there Is hope with the adoption of my recent balanced
and prudent budget,we respectfully ask that we be allowed.to work closely with your'office to
ensure a financial oversight committee will not be necessary and we are able to continue to
follow a fiscally prudent path.
Sincerely,
Roy Stephen Shiver,Jr.,City Manager SSh1ver( Qpalockafl.gov
Cc: Legislative Audit Committee via Email:JLACCL'eg.Staie.FL.us
rib wus.750 risl,em an sit o ff,KARMA 4.(395)9141-282t.
AN EQUAL OPPORTUNITY tf!t+OVEitANC DOES Rat OVICRININATE OnmettaaC OP HANDICAP
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right to terminate die mbar if be does not do htt joh.The coasted is illegal become it hi.la
conflict whit the dour.He said dad after the dais Ciro the mutaga they should cot;themselves
shy City Attorney Brown=add hoe signed off on a documem with bettogc than world
violist the City Chaser.
Framer Connewskiner Doacttty Iotraa*, 13724 NW 22 Plsse. issued off by rrquesdfg
additional that to ad ma the Coaumcdon. She ,told that her brat Is heavy ben save tbs
Comodssion needa to boht hemidees tomouutable tot`shat is gig on with the finances.The
City fan goat in another diteaioa sham 20tik and had gonn thams gll five tsy rasasages.Gating
hid of the macaw is not doe unsvxr.R•ix.ascooatebailtyt•for finances.She odd the City does sac
need are inquiry.btu a tnteatie neat hie dais eeedi to,go to Miami Dade County co d tuyttast
bid Meal opyost just halm in 210D3.Gcnieg'id ethos neutagat is not the tow,itw problem Su
io taint mad every one on the City C amaisieu.
Nauasixt}mein:. Fhb Mead A1°,atilt for the wards of the aeranatahy does cot mom
hecata last eouusiasites noting the taco asked that the City Manages he ttliutaed to do bin
job without interference. She said dm dais is be3itg snotty and chase to conduct the*clot
meeting while everyateC was at.Moths and would not be Ott m Yoke their°pukes on the neater.
The residents bellow in what the meow is ttymg to do and this petsosaai issues do Pot beton.
This should be handled late a bushiest.ibe manager Ass net beet able to do Out he has to do is
only three(3)months.She said tam it maybe time tie the Consininsiatt lobe teploced.Them wo
a web fast mouth sash die mikes vowed to halos butt the City,ad mote tabiag back she
City needs to suet with the dale.She asked that they.leave the nuance alone and allow him to
do his Job.
A Hispanic lady coma to she podium and requested a translator. Delia. Remedy. Grain
Adminis toaaor juiced tier is the sedum to nsatsluta.She said that**is'wotrkd about the stair of
the City and is s.Rald as knee boas and have hand to said her chiidrea sway brow del
attacked fa the City.She said she is tbstaintinated against when the guns elsewhere and tells
pcofie she is from Opaiocha.She odd thdadht was attaiced with a pitta►.A friend of•haa watt
shot in the coda the mbar night.In bee twenty your sin a Palatal it has never been ate bad ar h ins
no.The y t,people on a big part of the problem.If serdietbing is not done about the
smoke,the tesidoats xe pto mote away.
Chris Roberts,ttt20 Rutland Street.odd dial the trouble that sh~is sec/Dg noow is Dot rsew.he
City Manager n.being ashamed fear anything was srs�art ago and it has si h She said that
reholy moons each oder ea she dal Rripset } A
hiadhaeine Sa liw.d. 113.1 Dunad Avenue,addressed small i.+aaas in the City.nod told the
wow that the in atihi g him to make Use community hitter by slung hit job.
Brio }em :us NW 1334 Sheet.said them is rtha person the manna's owaract;and tat h is Rased on the chaster.He tefetenced section B and C in the c nttsci tegasdi i City
Mover Shines duties.'The eootra s aefertnets the tau front lite Osseo.He said that when
inert is gam playing because of em layers who orb atoms with Canmfssionets and getting
raises.That is not fait so the engdoyeees the ee being laid off.The Chnter and the anion state
2
s.waraMOmeawarrNny Iowan-Limnos
r
shat the manager Ire is chargo of die duty to day npavutaas of rho City.Tbaahas buca hereby
Managers.in the last few years bring terminated With or direr lisped tbooawed dollars In
mow(S31O CUQAQ).This City Manner sktsui be the sixth.The job of the City coma first.
Resident comes Grit.Employees rnttm tkd.lie toad that one or two year employees should em
have priority over veteran craptoyees.
Mayor Taylor thanked everytme that had gives their comments mil stattessats daring cilium
input.
6. RESOLUTION:
(a) A AESOU T1Ohst OP TIME an COMMISSION OF THE CIT? OF OPA-
LOCRA.FLORIDA TERIt iNAI h (O THE IlMFL O h SOiYF AGREEMENT vkTR*Olt
STOW(SIUVER:PROMO FOR INCORPORATION OF RECITALS:PROVIDING
FOR AN MECUM VE DATR.: eeseerd by dta sir aylor.
The abate tsototkin Wan said by City Anomcy Exam.
Mato Taylor parted the gated user to Vice Mayor Holmes 6oraaae abet spawned this
ressdaritm end Ito next two.
It was aimed l'y Cmaanissionr t Santiago and moaaaated l y Mayor'rapier to pass the aiecdsidoa.
Mayor Taylor said that it has bee said that she has a Penland issue with City Kemp Shiner.
however the does not Snow hint enough to bn rs*personal Issas with him ro that is arm:home.
it is matey job reload.City Manages Shiver mat itdorfpation to TaHalunsec fits saying that he
was duly obligated.bat he is first obiignod to the Commis:deo aseceiog ao The Charter.The
emeriti:ase It soda as if tbmsxos n dire aced for as oversight eoamaitta s memo In sod take
over the City."Tire City la not the first City to be in a financial sitcatlon.and R wits not be ate
tau`.The City did Ism Pet the opportunity to get a recovery plea to Wag the City bank its lino
with fronts=.The information was sett straight to Tallahassee and dicta the Commission found
cot shoat
She iwad Ma if en oversight is prayed on the City,ededrds!ratimt is gone.the Commission is
goat,and rho sure will ran everything.The•date sail a letter taking who it was the City warned
them to do The state wends the City to give them a plan to mold a taxmen The Charm.has
been sietated on small trams with this manager and everything that he Is put fag out there.
Both do dais and the u nnaget have takes an oath to folksw The 0181t47 and the manager LK not
tlotag tn.She said that one of her tulle ag es said ter that if smnedting i;going to be done.it
antic to be done now.
She inmate impressed dot die• cannot and still mat work with the manager.ager.He does not speak to
tact;awn when notice was put out fit never unar max to het and asked haw they could antic an
waslwrcrrho issue it.Ste=mated tint she cannot sad Kilt not nowt with Cdy Manager Slaw.
3
samanconnanan Means lAsAIN•stlufaais
C ontroissitntes Semiign sail that he does eat understand why he tees mid that eslarlibli was•
okay Aitb the iwd�iet and then nocuo to find uat it is ent rm.He add that le is ready to coo c odt the
RsGhtlmA
Vim'We'rBotu at said that he dues:not undiectmtd all or the*pie tint*Om Oreil le=is an
old fur she manager when be jtea came to the City.Butwben ICelvin lldtet tem City Manager be
beargltt forty ninon*thus(S40.00GLO1:OO)fai inTriforathur,be Wight in our eigManitlloe
doff (SLA00,000A0)for t e new City)tall:bet nobody came to tlx.mctits and said shat
their ham weft wad when he led.
He saki that City Mro:egea Shiver ebotld bete come to the t'aatmissicn and basing them
dactiments swing what he has bran doing to*nom the cooaditian and the rnelfise Of the City.
He mid tbac bo dots not mall=ref those tinny,being done.He wants to kitssw why everyone's
heart to so berry.The emirs mid drat abo cannot work with the maeegae mid If he has the power
to do something about the situation he wilt do to No tote not want to come to meeting alter
mating and there are bed feelings.ail around. •
There being no further divainin a.the M resa passed by c 3.1 vita.
Vita Mayor Holmes Yes
Couunlruicce,Keay Net.Pabeat
Cartmtissioraet Pinder No
Commissioner Santiago Yes
Mayor Taylor Yee
(b) A RESOLUTION OF TUE CDT COMMISSION OS THE CITY OF OP •
LOCKA APPOINTING A'pi INTERIM CITY MANAGERt PROVIDING FOR
INCORPORATION Of RECITALS; PROVIDING FOR AN EEFIXTIVE DOE
Sponsored Iwy stkav Taylor
The above resolution was rend by City Manley Drown.
h Will mooed by Conuttlmiettor Santiago and seconded by Cailif►sis sJnnrr Pbsder as mg the
resolution.
There being no further uisrioalan.the motion mewed by it 4.0 vote.
C4rnunisaienee Kelloy Not Present
Gwent lrr Yes
CORAtaisgeatter Santiago Y:r
Vice Mayor Hogs Yrs
May+orToyIor Yes
lei A RESOLUTION OP TAE CITY COMMISSION OF THE CITY OF OPA•
LOCEA,FLORIDA,AMENDING RESOLUTION 13.403+9,DELETING ROY STEVEN
SHIVER AS SIGNATORY AND ADDING DAVID CIIIVERTON (INTERIM CITY
4
Ai ua4ltwamutwoae+/oeteew•ttlt'Vtass
MANAGER); PROVIDING FOR INCORPORATION OF RECITALS;PROVIDING
TOR AN LOYECTWVE DATE.Sponsored by Mayor Taylor.
Tine above resolution was read by Qty Attorney 9rovat
1 was moved by Cturbrois.lone c Pinder end sanded.by Curauftionor Santiago no pass the
Them bcio,I no Nether discussion,the mc'a pool by a 4;0 vox.
new Pik Yes
Commissioner San o Yes
Vice Mayor Helms Yes
Cocuuisslmrer Kelley Na Present
. MsyorTaytre 'Yea
Id) A RESOLUTION OF TUE CITY COMMISSION OF THE CITY OF OPA
LOMA, FLORIDA, TO AMNON= THK CITY COMMISSION '(OR Tltl#R
AUTHORIZED PROXIES) TO OPERATE AS A. BOARD OF INQUIET VI TO
()
CURRENT rIND PROSPECTIVE FISCAL STATUS AND PERSONNEL MATTERS OF
TUE CITY Mid TO ARTICLE VIII SECTION 2I9) OF TOR FLORIDA
CONSTITUTION Ar D ARTICLE II SECTION 23(5)OF THE CHARTER OP TIM
CITY OF OPA•LOCKA; PROVIIHNG FOR TILE AI'POV TMENT OF HEAVING
OFFICER: CONVENING THE BOARD OF INQUIRY
PROVIDING FOR INCORPORATION OP RECITALS; PROVIDING FOR AN
EFFECTIVE DATE.Sponsored by Cana issketes Pfn4cr.
The above resolution was mad by City Attorney Brawn.
U was tanned by Ccsntoisrioutt Finder and soroadal by COmeniasktuer Samlago.
Vase Mayor Holmes asked Corainissinrer Co Platter if die retohn9R►can to held of until slier the
ideer.
Commissioner wad chat Is fire with hire but wants tot ascend that they vote on it teal come hail
with the ponicubes at later date(wlthirn Om days).
Mayor Teytcc agreed with Vice Mayor Humes.
City Araumy Brown wants to chaffy that the only thing that tl<being brought Net*the met
nmehng is apptuating a heating=Millet and the date and time that the beard all convent.
nets Wag nu further diaxessifuh the moth=juesed bye 3-1•rate.
Cununia+roeer Santiago Yes
Vice Mayor Whets a No
S
were amobss eewarmeta►-u/LVaos
Caattaissamct Katy Not Priem
Corontissioaer Punier Yew
Mart Taylor 12s
7. ADJOURNMENT:
Then Wag no focuser boldness to came before else CitatudationA was await by Carttnisstomccr
Panierand wattled byO aani: toncxSantiagoto tusrtl ,,,.-, ;at t2:tspni.
r Y00.
ATTEST:
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