HomeMy Public PortalAbout19-9648 Settlement Agreement of Chapter 7 for Roy Stephen Shiver Sponsored by: City Attorney
RESOLUTION NO. 19-9648
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF OPA-
LOCKA, FLORIDA, AUTHORIZING THE CITY MANAGER AND CITY
ATTORNEY TO EXECUTE AND IMPLEMENT A SETTLEMENT
AGREEMENT, IN A FORM ACCEPTABLE TO THE CITY ATTORNEY,
IN BARRY E. MUKAMAL, AS CHAPTER 7 TRUSTEE OF THE
BANKRUPTCY ESTATE OF ROY STEPHEN SHIVER VS. CITY OF
OPA-LOCKA, CASE #: 2018,028275 CA-01; PROVIDING FOR
INCORPORATION OF RECITALS; PROVIDING FOR AN EFFECTIVE
DATE.
WHEREAS, The City was sued by Barry E. Mukamal, as the Chapter 7 Bankruptcy
Trustee of the Bankruptcy Estate of Roy Stephen Shiver, in Case#: 2018-02875 CA-01; and
WHEREAS, in order to avoid the unnecessary cost of continued litigation, the City
Commission finds that it is in the best interest of the City to resolve all claims stated in the
Plaintiff's lawsuit, and approve the settlement of this matter for Fifty-Seven Thousand Five
Hundred Dollars, as set forth in EXHIBIT "A."
NOW, THEREFORE, BE IT DULY RESOLVED BY THE CITY COMMISSION
OF THE CITY OF OPA-LOCKA, FLORIDA:
Section 1. RECITALS ADOPTED.
The recitals to the preamble herein are incorporated by reference.
Section 2. AUTHORIZATION
The City Commission of the City of Opa-locka hereby authorizes the City Manager and
City Attorney to execute and implement a Settlement Agreement in Barry E. Mukamal,
as the Chapter 7 Bankruptcy Trustee of the Bankruptcy Estate of Roy Stephen Shiver, in
Case#: 2018-02875 CA-01. (EXHIIT "A")
Section 3. SCRIVENER'S ERRORS.
Sections of this Resolution may be renumbered or re-lettered and corrections of
typographical errors which do not affect the intent may be authorized by the City
Manager, or the City Manager's designee, without need of public hearing, by filing a
corrected copy of same with the City Clerk.
Section 4. EFFECTIVE DATE.
This Resolution shall take effect immediately upon adoption and is subject to the
approval of the Governor or his designee.
Resolution No. 19-9648
PASSED AND ADOPTED this 24th day of April, 2019.
'JO'
Matthew A. Pigatt
Mayor
Attest to: Approved as to form and legal sufficiency:
elappitommougme
_ 1__Li
Jo a Flores THE BROWN LAW GROUP, LLC
City Clerk City Attorney
Moved by: COMMISSIONER BURKE
Seconded by: VICE MAYOR DAVIS
Commissioner Vote: 5-0
Commissioner Kelley: YES
Commissioner Bass: YES
Commissioner Burke: YES
Vice Mayor Davis: YES
Mayor Pigatt: YES
O`p.toCKV.
to
City of Opa-Locka
Agenda Cover Memo
Finance FD Signature:
Director: Department
City Newall J. Daughtrey CM Signature: / / A Nht
Manager:
Commission 04.24.19 Item Type: Resolution , Ordinance Other
Meeting X
Date: (EnterXin box)
Fiscal Ordinance Reading: 1st Reading 2nd Reading
Impact: Yes No (EnterXin box)
x Public Hearing: Yes No Yes No
$57,500 (EnterXin box) X X
Funding (Enter Fund& Advertising Requirement: Yes No
Source: Dept) (EnterXin box) X
Ex:
Account#: City Manager
General Fund
81-581920 Reserves
Contract/P.O. Yes No RFP/RFQ/Bi#:
Required:
(EnterXin box)
Strategic Yes No Strategic Plan Priority Area: Strategic Plan Obj./Strategy:
Plan Related X Enhance Organizational - (list the specific objective/strategy this
(EnterXin box) Bus.&Economic Dev El item will address)
Public Safety 0
Quality of Education (]
Qual.of Life&City Image El
Communcation 0 _
Sponsor City Attorney Department: City Attorney
Name
Short Title:
A resolution authorizing the City Manager and City Attorney to execute and implement a settlement agreement
in Barry E.Mukamal,as Chapter 7 Trustee of the Bankruptcy Estate of Roy Stephen Shiver vs City of Opa-locka.
Staff Summary:
It is in the City's best interest to accept the settlement to avoid unnecessary cost of litigation. The cost of the
settlement can be debited from the City Manager General Fund Reserve.
LProposed Action:
Execute and Implement a Settlement Agreement in Barry E. Mukamal,as the Chapter 7 Bankruptcy Estate of
Roy Stephen Shiver, Case No. 2018-02875 CA-01.
Attachment:
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.
STIPULATION FOR SETTLEMENT AGREEMENT AND GENERAL.RELEASE
This Settlement Agreement and General Release (hereinafter AAgreement @) is
entered into between BARRY E. MUKAMAL, solely in his capacity as Chapter 7 Trustee
of the bankruptcy estate of Roy Stephen Shiver, Jr. (the ATrustee @) and THE GREAT
CITY OF OPA-LOCKA, FLORIDA, a municipal corporation (the "CITY") this __ day of
April, 2019 (the "Effective Date"), for the purpose of resolving by compromise and
settlement, all claims, controversies, alleged liabilities, and disputes between them. as
follows:
RECITALS
WHEREAS, the Trustee, is the Chapter 7 Trustee of the bankruptcy estate of Roy
Steven Shiver, Jr. (the "Debtor" or "Shiver")(the "Bankruptcy Estate"), is the duly
appointed and acting Chapter 7 trustee in the pending bankruptcy case, to wit: the
Chapter 7 bankruptcy case pending before the United States Bankruptcy Court for the
Southern District of Florida, Miami Division (the "Bankruptcy Court"), styled In re Roy
Stephen Shiver, Jr., Debtor, Case No.: 17-24922-RAM (the "Bankruptcy Case "); and
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WHEREAS, as bankruptcy trustee, the Trustee is entitled, both as a matter of
bankruptcy law, and pursuant to that certain Stipulation for Compromise and Settlement
of (I) All Fully Disclosed and Scheduled Matters Between the Trustee and the Debtor
Including Valuation, Repurchase and Disposition of Debtor's Non-Exempt Interest in
Scheduled Property and (II) Potential Insider Avoidance Claims (the "Debtor/Trustee
Settlement Agreement"), as approved by the Bankruptcy Court's December 7, 2018 Order
Granting Trustee, Barry E. Mukamal's Motion to Approve Stipulation for Compromise and
Settlement of(1)All Fully Disclosed and Scheduled Matters Between the Trustee and the
Debtor Including Valuation, Repurchase and Disposition of Debtor's Non-Exempt Interest
in Scheduled Property and (II) Potential Insider Avoidance Claims (ECF No. 72)(the
"Debtor/Trustee Settlement Agreement"), to pursue for the benefit of the Bankruptcy
Estate any and all claims and causes of action held by Shiver when his bankruptcy case
was commenced on December 15, 2017.
WHEREAS, Shiver was previously employed by the City in the position of City
Manager. On or about August 20, 2018, the Trustee filed his Complaint in the above-
styled action (the "Lawsuit") against the City seeking damages against the City in
connection with certain alleged breaches of 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"); and
WHEREAS the City denied liability, disputed the Trustee's claims and defended
the above-styled action and presented various defenses thereto; and
WHEREAS, the parties wish to avoid the uncertainties and expense of further
litigation in this matter, and being desirous of resolving their disputes by settlement, are
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willing to enter into this Agreement on the terms set forth herein to avoid said uncertainties
and expense associated with protracted litigation; and
NOW THEREFORE, in consideration of the facts and general releases and
promises contained herein, and for other good and valuable consideration, the sufficiency
and receipt of which is acknowledged by each Party hereto, the Parties promise and
agree as follows:
1. Settlement Payment. Within thirty(30)calendar days of the Effective Date
of this Agreement,the City agrees to pay to the Trustee, and the Trustee agrees to accept,
the sum of Fifty-Seven Thousand Five Hundred Dollars and 00/100($57,500.00) in lawful
U.S. funds (the "Settlement Payment"). The Settlement Payment shall be made payable
to the Frank, Weinberg & Black, P.L, Trust Account.
2. Taxes and Indemnification. The Trustee acknowledges that the City and
City's counsel have made no representation regarding the taxability of the settlement
funds. The Trustee acknowledges and agrees that the Bankruptcy Estate will be solely
responsible for any taxes imposed as a result of entering into this Agreement or the City's
payment(s)referenced above, and f 'ther agrees to indemnify and hold the City harmless
from any claims, demands, deficiencies, levies, assessments, executions, judgments or
recoveries by any governmental agency or any entity against the City for any and all
income and/or employee,but not employer, taxes, if any, which may be found to be due
on the Settlement Funds paid hereunder to the Trustee or his counsel under this
Agreement. The Trustee shall provide the City with a fully executed W-9 within five (5)
days of the date of this Agreement.
3. Adequate Consideration. The Trustee expressly stipulates that the
consideration referred to in paragraph 1 constitutes adequate and ample consideration
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for the rights and claims the Trustee is waiving under this Agreement, and for the
obligations imposed upon the Trustee by virtue of this Agreement. Trustee expressly
agrees and acknowledges that the City has promised to pay the consideration referred to
in paragraph 1 of this Agreement in exchange for the releases, waivers and promises
made by the Trustee in this Agreement.
4. Dismissal of Trustee's Claims Against City
Upon: (a) Bankruptcy Court approval of this Agreement; and (b) timely receipt of
the Settlement Payment, the Trustee agrees to dismiss with prejudice, its Claims in the
Lawsuit against the City and any other pates, named or unnamed, in the Lawsuit, by
directing their respective counsel to sign and frie a Joint Stipulation of Dismissal with
Prejudice.
5. Release of All Claims By Trustee
Except as otherwise specifically stated in this Agreement, upon: (a) timely receipt
of the Settlement Payment; (b) Bankruptcy Court approval; and (c) Commission approval,
Governor of the State of Florida or his designee, the Trustee voluntarily and irrevocably
releases and forever discharges the City, and each and all of the City's direct and indirect
affiliates, and each and all of their respective officers, commissioners, employees, agents,
representatives, successors, insurers, predecessors and assigns (all collectively referred
to herein as the Released Parties)from and against any and all claims, obligations, debts,
liabilities, demands, or causes of action of any kind whatsoever, whether known or
unknown by the Trustee, (all collectively referred to herein as the disputes) with respect
to any acts occurring before the effective date of this Agreement arising from, or in any
way related to: (a) the pre-petition employment relationship between the Debtor and the
City; and (b) the Bankruptcy Case. The disputes released by the Trustee include, but are
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not limited to, any and all disputes, whether known or unknown by the Trustee, against
the Released Parties concerning Shiver's employment, and the termination of his
employment, with the City.
The disputes released by the Trustee herein include those known or unknown,
actual or contingent, in law, in equity or otherwise, and whether based in tort, contract,
statute, or any other basis. This release includes all disputes by which the Trustee could
seek equitable relief, and actual, compensatory, consequential, punitive, special, multiple
or other damages, expenses (including attorney's fees and costs), and all other
reimbursements or charges of any kind.
The disputes released by the Trustee include any and all disputes that were
assigned to the Trustee from Shiver that Shiver had or may believe to have had against
the Released Parties arising under any federal,state, locator foreign statute or regulation,
including, without limitation, those embodied in the Lawsuit or any other federal and state
employment-related statutes and regulations, any federal or state law prohibiting
retaliation,and any other employment-related local ordinance. Nothing herein is intended
to be a waiver that is prohibited by statute.
The disputes released by the Trustee also include any and all disputes that were assigned
from Shiver to the Trustee that Shiver had or may believe to have had against the
Released Parties in contract or at common law, including, but not limited to, breach of
oral, written and/or implied contract, breach of an implied covenant of good faith and fair
dealing, wrongful discharge under any theory, including for lack of good cause, in violation
of public policy, and constructive discharge, retaliation of any kind, intentional and
negligent infliction of emotional distress, negligent retention and supervision, assault,
battery, negligence, misrepresentation or fraud of any kind, duress, unfair dealing, breach
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of fiduciary or other duty, invasion of privacy, defamation, and interference with contract
and/or prospective economic advantage.
In that regard, Trustee further acknowledges that Trustee may later discover facts
in addition to, or different from those which Trustee now knows or believes to be true with
respect to the subject matter of this Agreement. Trustee agrees that any such difference
in the facts shall not affect this Agreement, that Trustee assumes the risk of any such
difference in the facts, and that Trustee further agrees that this Agreement shall remain
in full force and effect and not be subject to rescission by reason of any such difference
in the facts.
6. Release of all Claims By City.
Except as otherwise specifies stated in this Agreement, upon: (a) Commission
Approval and (b) Bankruptcy Court Approval, the City voluntarily and irrevocably releases
and forever discharges the Trustee and the Bankruptcy Estate, and each and all of the
Trustee and Bankruptcy Estate's direct and indirect affiliates, and each and all of their
respective officers, employees, attorneys, accountants, agents, representatives,
successors, insurers, predecessors and assigns (all collectively referred to herein as the
ATrustee Released Parties@) from and against any and all claims, obligations, debts,
liabilities, demands, or causes of action of any kind whatsoever (all collectively referred
to herein as the Adisputes @) whether known or unknown by the City with respect to any
alleged acts occurring before the effective date of this Agreement arising from, or in any
way related to: (a) the pre-petition employment relationship between the Debtor and the
City; and (b) the Bankruptcy Case. The City further agrees and acknowledges that is shall
be entitled to no claim against, or distribution from, the Bankruptcy Estate.
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The disputes released by the City herein include those known or unknown, actual
or contingent, in law, in equity or otherwise, and whether based in tort, contract, statute,
or any other basis. This release includes all disputes whether known or unknown by the
City, by which the City could seek equitable relief, and actual, compensatory,
consequential, punitive, special, multiple or other damages, expenses (including
attorney's fees and costs), and all other reimbursements or charges of any kind.
In that regard, the City further acknowledges that the City may later discover facts
in addition to, or different from those which the City now knows or believes to be true with
respect to the subject matter of this Agreement. City agrees that any such difference in
the facts shall not affect this Agreement, that City assumes the risk of any such difference
in the facts, and that City further agrees that this Agreement shall remain in full force and
effect and not be subject to rescission by reason of any such difference in the facts.
7. Terminr of Settlement. It is specifically acknowledged and agreed
upon that the City requires approval from its Commission in order to consummate the
transaction caffed for in this Agreement (the 'Settlement"). In the event that City's
Commission fails to provide the necessary approval of the settlement contemplated by
this Agreement, the Agreement shalt be void in its entirety and the parties shall resume
the Lawsuit as though the Agreement had been entered into, and the Settlement Payment
(if made prior to any non-approval by the Commission) shall be returned in accordance
with the terms of this paragraph. In the event that this Agreement is voided and
terminated pursuant to this paragraph, this Agreement shall be deemed null and void with
no effect on the lawsuit whatsoever. In such event, the terms and provisions of this
Agreement shall have no further force and effect with respect to the Parties. In the event
that this Agreement is terminated, the Parties do not waive, and rather expressly reserve,
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all rights to continue with their claims and defenses in the lawsuit on all procedural, legal
and factual grounds they may have as if this Agreement never existed. Likewise, the City
understands, acknowledges and agrees that the Trustee requires approval of the
Bankruptcy Court, in the Bankruptcy Case, of the Settlement, and in the event that the
Bankruptcy Court declines to approve the Settlement, the Agreement shall be void in its
entirety and the parties shall resume the Lawsuit as though the Agreement had been
entered into, and the Settlement Payment (if made prior to any non-approval by the
Bankruptcy Court) shall be returned in accordance with the terms of this paragraph. In
the event that this Agreement is voided and terminated pursuant to this paragraph, this
Agreement shall be deemed null and void with no effect on the lawsuit whatsoever. In
such event, the terms and provisions of this Agreement shall have no further force and
effect with respect to the Parties. In the event that this Agreement is terminated, the
Parties do not waive,and rather expressly reserve, all rights to continue with their claims
and defenses in the lawsuit on all procedural, legal and factual grounds they may have
as if this Agreement never existed. The City agrees to use its best efforts to obtain
Commission approval of this Agreement and the Settlement and the Trustee agrees to
use his best efforts to obtain Bankruptcy Court approval of this Agreement and the
Settlement, and neither Party shall take any actions that would decrease the likelihood of
approval by the Commission and the Bankruptcy Court.
8. No Disputes Pending Or Assigned By Trustee
Trustee represents to the City that he does not currently have pending before any
court or before any federal, state or local government agency any other dispute assigned
to him by Shiver of any kind against the Released Parties. The Trustee represents and
agrees that he will not hereafter pursue, initiate or cause to be instituted any other dispute
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assigned to him by Shiver of any kind against the Released Parties. The Trustee further
represents that the Trustee has not heretofore assigned or transferred, or purported to
have assigned or transferred, to any entity or person any dispute released by the Trustee
herein.
9. No Admission Of Liability Or Wrongdoing
The Trustee agrees that nothing contained in this Agreement or otherwise shall
constitute or be construed as an admission of any alleged liability or wrongdoing by the
City. The City denies that it engaged in any wrongdoing of any kind with respect to Shiver.
10. Advice of Counsel. The Trustee and the City each acknowledge that they
have had an opportunity to receive advice about the terms and legal effects of this
Agreement from counsel of their own choosing and hereby represent to each other that
they have consulted with their respective attorneys about this Agreement before signing
it.
11. Voluntary Execution of Agreement
This Agreement is executed voluntarily and without any duress or undue influence
on the part or behalf of either party,with the full intent of being bound by this Agreement's
terms and where applicable and releasing all claims. The Parties acknowledges that:
a. they have read this Agreement;
b. they have been represented in the preparation, negotiation, and execution
of this Agreement by legal counsel of their own choice;
c. they understand the terms and consequences of this Agreement and of
the releases it contains; and
d. they are fully aware of the legal and binding effect of this Agreement.
12. Severability
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Should a court of competent jurisdiction declare any part of this Agreement to be
illegal or invalid, the remainder of this Agreement shall remain valid and in effect, with the
invalid provision deemed to conform to a valid provision most closely approximating the
intent of the invalid provision, or, if such conformity is not possible, then the invalid
provision shall be deemed not to be a part of this Agreement.
13. Governing Law And Interpretation
This Agreement shall be governed by and construed in accordance with the laws
of the State of Florida. Its language shall be construed as a whole, according to its fair
meaning, and not strictly for or against either party, no matter who may have drafted the
language in question.
14. Disputes; Damages to the event of a dispute as to the interpretation,
application or violation of this Agreement, it is understood and agreed that the Bankruptcy
Court, in the Bankruptcy Case,shall have sole and exclusive personal and subject matter
jurisdiction over the Parties to interpret, implement or enforce the Settlement and/or
adjudicate any and all disputes in any way arising from or related to this Agreement and
the subject matter them.. The parties agree that any such dispute shall be resolved by
a judge, not by a jury. Neither party shall be entitled to an award of compensatory,
exemplary, or punitive damages in any dispute that might arise under this Agreement.
15. Entire A.gueeetent; No Oral Modification
All parties represent and agree that they are not relying on any representations,
promises, statements or agreements not contained in this Agreement. All parties
represent and agree that this is an all-inclusive Agreement and that no other written, oral
and/or implied representations, promises or agreements exist between them regarding
the subject matter set forth in this Agreement. All parties represent and agree that this
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Agreement is a single, integrated contract expressing the entire agreement of the parties
regarding the subject matter of this Agreement. This Agreement cannot be modified,
amended, terminated or otherwise changed unless it is done so pursuant to a written
document signed by the Trustee and an authorized officer of the City.
16. Counterparts: This Agreement may be executed by the Parties in any
number of counterparts, including by way of facsimile or electronic mail using .pdf format,
and each of which shall be deemed to be an original and all of which, collectively, shall
be deemed to be one and the same instrument.
17. Time is of the Essence: Time is of the essence with respect to the
performance of any and all provisions of this Agreement, and the Trustee agrees to
promptly seek entry of a final, non-appealable order of the Bankruptcy Court approving
this Agreement and the Settlement.
18. Headis and Captions: The headings and captions inserted into this
Agreement are for convenience only and in no way define, limit, or otherwise describe the
scope or intent of this Agreement, or any provision hereof, or in any way affect the
interpretation of this Agreement.
IN WITNESS WHEREOF, each of the Parties hereto has executed this Agreement on the
date set forth opposite his, her, or its name below. The undersigned herby certify that
they have read and fully understand all of the terms, provisions and conditions, of
this Agreement and have executed this Agreement voluntarily.
Dated: April___, 2019
BARRY E. MUKAMAL, solely in his capacity as
Chapter
7 Trustee of the Bankruptcy Estate
of Roy Stephen Shiver, Jr.
Date:
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THE GREAT CITY OF OPA-LOCKA,
FLORIDA, a municipal corporation
By -- — ----- -
its: — — --,
Date: — -- —
By
its: - ---- ---
Date: - -- - --
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