Res. No. 148-06-12289RESOLUTION NO.148-06-12289
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE
CITY OF SOUTH MIAMI,FLORIDA,RELATING TO CLAIMS;
APPROVING A SETTLEMENT AGREEMENT IN THE CASE OF
PLAINTIFFS STROFACE AND DURAN v.CITY OF SOUTH MIAMI
AUTHORIZING THE CITY MANAGER TO EXECUTE THE
SETTLEMENT AGREEMENT PROVIDED THAT IT IS CONSISTENT
WITH THE SETTLEMENT TERMS AND CONDITIONS APPROVED BY
THE COMMISSION;PROVIDING AN EFFECTIVE DATE.
WHEREAS,plaintiffsfiledor joined inalawsuit against theCityintheEleventh
Judicial Court inandfor Miami-Dade County,Florida,styled Joseph Duran,andothers similarly
situated v.the City of South Miami,Case No.05-13481 CA 04;and
WHEREAS,theCity denies all of the allegations made by plaintiffs inCaseNo.05-
13481 CA 04;and
WHEREAS,thepartiesprefertoavoidtheuncertaintiesandexpenses of further
litigationanddisputes,andinstead,desiretosetforththisAgreement,withoutestablishing
precedent,thetermsand conditions ofthe settlement ofPlaintiffs'claims,includingtherelease
ofanyandallclaimsthattheyhaveorcould possibly haveagainsttheCity,in exchange forthe
consideration described in the Agreement.
NOW,THEREFORE,BE IT RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF SOUTH MIAMI,FLORIDA,THAT;
Section1.TheCity Manager is authorized to execute the Settlement Agreement and
General Mutual Release,which is attached hereto.
Section2.TheCityagreestopaythetotalamountofThirtyOneThousandFive
Hundred Dollars ($31,500)tobe split between the Plaintiffs and their attorney in full and final
settlement of this matter.
Section 3.This resolution shalltake effect immediately upon approval.
PASSED AND ADOPTED this j£z.daY of (Ju^Au^t ,2006.
SIGNATURES ON FOLLOWING PAGE
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Res.No.148-06-12289 i »i
ATTEST:
CITY CLERK
READ AND APPROVED AS TO FORM:
^iffTATTORNEY C^
APPROVED:
COMMISSION VOTE:5-0
Mayor Horace Feliu:Yea
Vice Mayor Randy G.Wiscombe:Yea
Commissioner Velma Palmer:Yea
Commissioner Marie Birts:Yea
Commissioner Jay Beckman:Yea
C:\Docwnents andSettings\SRothstein\My Documents\Reso-Ord\stroface and duran resolntion.doc
To:
Via:
From:
Date:
Subject:
Request:
CITY OF SOUTH MIAMI
OFFICE OF THE CITY MANAGER
INTER-OFFICE MEMORANDUM
The Honorable Mayor Feliu and Members of the City Commission
Yvonne S.McKinley,City Manager L
South Miami
JUMmofcaCity
miir
2001
Jeanette Navarro,Hitman Resources Manager
August 15,2006 Item No.
Approval of SettlementAgreementandGeneralMutualRelease
x
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE
CITY OF SOUTH MIAMI,FLORIDA,RELATING TO CLAIMS;
APPROVING A SETTLEMENT AGREEMENT IN THE CASE OF
PLAINTIFFS STROFACE AND DURAN v.CITY OF SOUTH MIAMI
AUTHORIZING THE CITY MANAGER TO EXECUTE THE
SETTLEMENT AGREEMENT PROVIDED THAT IT IS CONSISTENT
WITH THE SETTLEMENT TERMS AND CONDITIONS APPROVED BY
THE COMMISSION;PROVIDING AN EFFECTIVE DATE.
Reason/Need:Tosettlependinglawsuittoavoidfurther litigation'aridexpenses.
Cost:$31,500
Funding Source:
Backup Documentation:
SettlementAgreementandGeneralMutualRelease
AUG-28-06 01:43PM FROM-,T-475 P.15/26 F-013
SETTLEMENT AGREEMENT AND GENERAL MUTUAL RELEASE
This SETTLEMENT AGREEMENT AND GENERAL MUTUAL RELEASE
("Agreement")is entered into by JOSPEH DURAN ("DURAN")and MICHAEL STROFACE
("STROFACE")(collectively referred to herein as "PLAINTIFFS"),and the CITY OF SOUTH
MIAMI,its related entities,corporations,partnerships,subsidiaries,and subdivisions,as well as
!their respective current and former council persons,officials,directors,officers,|agents,
idepartmentheads,supervisors,employees,attorneys,insurers,successors in interest,
representatives and agents,bothjin their official and individual capacities (collectively referred to
hereinafter asthe "CITY").!
WHEREAS,PLAINTIFFS filed or joined in a lawsuit against the CITY in the Eleventh
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Judicial Circuit in and for Miami-Dade County,Florida,styled Joseph DuranT atd others
similarly situated v.The City oJF South Miami,Case No.05-13481 CA 04 ("Case No.05-13481
CA 04"),alleging claims under the Fair Labor Standards Act ("FLSA");
WHEREAS,the CITY denies all of the allegations made by PLAINTIFFS in pase No.
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05-13481 CA 04;and,!
WHEREAS,the parties prefer to avoid the uncertainties and expenses of further litigation
and disputes,and instead,desire to set forth this Agreement,without establishing precedent,the
terms and conditions ofthe settlement ofPLAINTIFFS'claims,including the release of anyand
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all claims that they have or'could possibly have against the CITY,in exchangf for the
consideration described herein,'
NOW,THEREFORE,'in consideration of their mutual promises and other
valuable consideration,receipt of which is hereby acknowledged,the parties,intending to be
legally bound,agree as follows;
DUR4LN
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STROFACE
iood and
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AUG-28-06 01:43PM FROM-T-475 P.16/26 F-013
1.Execution of Agreement and Joint Stipulation for Dismissal With Prejudice as to
Plaintiffs.
Should either Plaintiff!M or refuse to execute this Agreement for any reason,this
Agreementshallbedeemedinvalidand unenforceable astothatPlaintiff,and CITY shallbe
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relieved of all obligations imposedbythis Agreement astothat Plaintiff.Each Plaintiffwill
authorize his attorney,Eddy 3.Marban,Esquire,to execute oneach one's behalf the Joint
Motion for Approval of Settlement Agreement and to Dismiss ActionWith Prejudice ("Joint
Motion")thatisattachedtothisAgreementasExhibit1,therebyagreeingtodismissCaseNo.
05-13481 CA 04 with prejudice(eachpartytobearitsowncostsandfees except asdelineatedin
I
this Agreement).Upontheeffectivedate of this Agreement,eachPlaintiffwill direct his
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attorney to return the properly-executed Agreement and the original,properly-exec ited Joint
Motion to counsel for CITY,James C.Crosland,at the law firm of AKERMAN SENTERiFITT,
28th Floor,Southeast Third Avenue,Miami,Florida 33131-1714.Upon receipt of the same,
Counselfor CITY shall execute andfile the Joint Motion with theCourtandsetit f >r hearing
upon the Court's Motion calenqar.
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2.Consideration.!
In consideration for PLAINTIFFS'agreement to dismiss Case No.05-13481 CA 04,to
execute this Agreement and the Joint Motion,and to give the release stated in this Agr sement,in
addition to fulfilling the other promises set forth herein,the CITY agrees to pay the toi al amount
of Thirty One Thousand F;ive Hundred Dollars ($31,500.00)to be split between the
PLAINTIFFS andtheir attorney in full and final settlement of this matter.Upon execution of
this Agreement,PLAINTIFFS*counsel will provide the City's counsel will the exact breakdown
of the amounts tobe paid to each PLAINTIFF and to their counsel.Any portion thai is paid to
DUBW(N
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STROFACE
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tltfr-
CITY
AUG-28-06 01:43PM FR0M-T-475 P.17/26 F-013
PLAINTIFFS willbeminus applicable employmentwithholdings,deductions,andtaxes,and
any portion that is paid to PLaJnTIFFS'attorney (Tax Id No.S^gf/fctffVi will be reported
on an IRS Form 1099 to PLAINTIFFS'counsel.The payments specified hereinj shall be
tendered within ten (10)calendar days ofthe Court's entry ofthe Order Approving Settlement.
3.No Lawsuits nr plaims.
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PLAINTIFFS each represent and agree thathewillnot hereafter pursue,initiate,orcause
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to be instituted against the (JlTY any dispute released herein.PLAINTIFFS each further
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i 'represent thathedoesnot currently have pending before anycourtorbeforeany federd,state or
local agency any dispute of anykind against theCITY other than Case No.05-13481 CA 64.If
it is determined that PLAINTIFFS,either individually or together,have any other lawsi it,charge
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of discrmtination,or other claim pending against the CITY,each agrees to dismiss any such
claims,with prejudice,immediately upon determining that such charge or claim is pend ing.'
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PLAINTIFFS agree thatwith respect tothe claims each is waiving,eachis waving not
onlyhis right to recover moneyorotherreliefinany action thathemight institute bui also that
heiswaivinghisrighttorecover money orotherreliefinanyactionthatmightbe brou *ht onhis
behalfbyany other person orentity including,butnot limited to,theState of Florida,t le United
States Equal Employment Opportunity Commission C'EEOC"),the Department of Labor
(*T)OL")»or any other (U.S.or foreign)federal,state,or local agency or department.
PLAINTIFFS each further represent that neither has heretofore assigned or transferred,or
purported to have assigned ortransferred,to any entity or person any dispute released herein.
i
4.General Mutual Release and Waiv^nf r^jmc
In exchange forthe consideration described inthisAgreement,PLAINTIFFS irrevocably,
knowingly,andvoluntarily release,waive,and forever discbarge anyandallclaims,demands,
STROFACE
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AUG-26-06 01:44PM FROM-T-475 P.18/26 F-013
actions,or causes of action,of any kind whatsoever,known or unknown,foreseen or ui iforeseen,
foreseeable or unforeseeable,and any consequences thereof,which each has or may have against
the CITY from the beginning!of the world until the effective date of this Agreement.The
disputes released by PLAINTIFFS include,but are not limited to,any and all disputes '<gainst the
CITY concerning each one's employment,and resignation or termination of e*ch one's
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employment with the CITY,j
The disputes released!by PLAINTIFFS 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 for which PLAINTIFFS could seek]equitable
relief,and actual,compensatory,consequential,liquidated,punitive,special,multipb or other
damages,expenses (including attorneys'fees and costs),and all other reimbursements pr charges
of any kind.The disputes released by PLAINTIFFS include,but are not limited to,airv claim(s)
under:!
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Title VII oftheCivilRightsAct of 1964;
TheCivilRights Act of 1991;
The Florida CivilRights Act of 1992;
Sections 1981 through 1988 ofTitle 42 ofthe United States Code;
TheConstitutions oftheUnitedStatesandtheState of Florida;
The Employee Retirement Income Security Actof 1974;
The Florida Health Insurance Coverage Continuation Act;
TheFlorida Wage DiscriminationLaw;
Florida WageandHourlaws;
Any Florida or federal whistleblower laws;
The Internal Revenue Code;
The Rehabilitation Act;
The Consolidated Omnibus Budget Reconciliation Act;
The Immigration Reform and Control Act of 1986;
The Americans with Disabilities Act of 1990;
The Age Discrirnination in Employment Act,including the Older Workers
Benefit Protection Act;
The Fair Labor|Standards Act;
The Equal Pay Actof 1963;
TqtySTROFACE
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The Occupational Safety and Health Act;
TheFamily and,'MedicalLeave Act of 1993;
The National Labor Relations Act;or
Any other federal,state,or local civil or human rights law or any othjer federal,
state,orlocallaw,regulation,or ordinance.
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The disputes released by PLAINTIFFS also include any and all disputes they have or may
believethemselvestohave against the CITY in contract orat common law,including,butnot
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limitedto,breach of oral,written and/or implied contract,breach of animplied covenant of good
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faithand fair dealing,wrongful discharge underanytheory,includingforlack of good cause,in
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violation of public policy,and constructive discharge,intentional and negligent infliction of
emotional distress,negligent retention and supervision,assault,battery,regligence,
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misrepresentation or fraud of £ny kind,duress,unfair dealing,breach of fiduciary orotherduty,
invasion of privacy,defamation,false imprisonment,and interference with contract and/or
prospective economic advantage.
Thereferencehereintospecific statutory,contract and common lawclaimsisinnoway
intended tolimitthe disputes released by PLAINTIFFS.PLAINTIFFSintendthat tie disputes
released by each one herein lie construed as broadly as possible to cover any and all disputes
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eachmayhaveorbelieve himself tohave against the CITY.Inmat regard,PLAINTE FS further
acknowledge thattheymaylaterdiscover facts inadditiontoordifferentfromthosewhichthey
nowknoworbelievetobe true with respect tothe subject matter of this Agreement.
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PLAINTIFFS agree thatanysuch difference inthe facts shallnotaffectthis Agreement;that
they assume therisk of anysuch difference inthe facts;andthatthey further agree thatthis
Agreement shall remaininfull force andeffectandnotbesubjectto rescission by reason of any
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such difference in the facts.
STROFACE
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PLAINTIFFS alsoeach agree and acknowledge thatthisAgreementisalso pursuant to
Section 440.20(1 l)(c)(d)and (ej),Florida Statutes,and is intended to be a complete and final
settlement of any and all workers'compensation benefits under Chapter 440,Florida Statutes,
including,but not limited to,future medical benefits.PLAINTIFFS also each stipulate that all
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accidents,injuries,repetitive traumas,exposures,and occupational diseases known to have
occurred orbeen sustained while employed by the CITY have been revealed.PLAINTIFFS each
agree that this Agreement includes all accidents,occupational diseases and injuries sustained
while employed by the CITY,whether reported or not It is PLAINTIFFS'intention to fully,
finally and forever resolve and release any and all disputes that each may have or believe himself
to have against the CITY with respect to any alleged acts occurring before the effective date of
this Agreement,whether those disputes presently are known or unknown,susp acted or
unsuspected.
The CITY also hereby knowingly and voluntarily releases,waives,and forever
discharges any and all claims1,rights,demands,actions or causes of action,of $ny ikind
whatsoever,known or unknown,foreseen or unforeseen,foreseeable or unforeseeable,and any
consequences thereof,which Iit may have against PLAINTIFFS,either individually or
collectively,from the teginning of the world until the effective date of this Agreeinmt.The
disputes released by the City include any and all disputes it has or believes itself to ha\e against
PLAINTIFFS 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,
discharge under any theory,misrepresentation or fraud of any kind,duress,unfeii
breach of fiduciary or other duty,and interference with contract and/or prospective economic
advantage.The reference herein to specific statutory,contract and common law claii
STROFACE
6ofl2
wrongful
dealing,
AUG-28-06 01:44PM FROM-T-475 P.21/26 F-013
way intended to limit the disputes released by the CITY.The CITY intends to and dois release
any and all claims that it may have against PLAINTIFFS,either individually or collectively.
5.NoFutureEmployment.
PLAINTIFFS agree that they will not seek employment or reinstatement with jhe CITY
as a full-time,paid employee of theCITY.
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6.No Admission Of LiabilityOrWrongdoing.
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PLAINTIFFS agree that nothing contained inthis Agreement or otherwise shall
constitute orbe construed asan admission of any alleged liability or wrongdoing byt le CITY.
Indeed,the CITY denies that it engaged in any wrongdoing ofany kind with respect to ^ny ofthe
PLAINTIFFS.!
7.In4emnitv.I
PLAINTIFFS acknowledge thatallcosts and/or attorneys'feesliens,workers'
compensation liens,and all medical liens and bills for medical,hospital,ambulance and/or
nursing care,treatment,diagnosis,or examination of PLAINTIFFS arising out of or related to
the claims asserted in,orthatcouldhavebeen asserted inconnectionwithPLAINTIFFS'lawsuit,
have orwillbe paid in full by PLAINTIFFS out ofthe proceeds ofthis Agreement.
PLAINTIFFS agree tothis indemnity provision for the purpose of inducing the CITYto
settleCaseNo.05-13481 CA 04andin consideration forthefundspaidasset forth inthis
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Agreement.PLAINTIFFS agree to indemnify and hold the CITY harmless of and fror i any and
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allbills,sums,amounts,debts,liens,demands,claims,promises,damages,judgments,and
executions in law or in equity,for attorneys'fees and/or costs,medical,hospital,ambulance
and/or nursing care,treatment,'diagnosis or examination arising out of or related to Caje No.05-
13481 CA 04,or any other allegation that was made or could have been made by PLAEOTfFS.
STROFACE
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8.Tax Consequences of Settlement.
PLAINTIFFSunderstandandagreethatshouldtheIRS,oranyothertaxing am horityor
other federal,state,orlocalagency assert,argue,ordeterminethatany money receive1orpaid
pursuant tothisAgreement,thatwasnotsubjecttowithholding and/or deductions,is taxable
wages,income,orbenefits of anykind,PLAINTIFFS willbesolelyand individually re sponsible
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for the payment of anyand all'taxes,contributions or withholdings (whether they are allegedly
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due from PLAINTIFFS,the ClfY,or any combination thereof)including,but not limit*sd to,any
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related attorneys'fees,interest,'costs,penalties,or other charges regardless of whether he CITY
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should have withheldorpaidsuchtaxesormadesuch contributions (including Social Security or
Medicare).PLAINTIFFS will indemnify,reimburse,and hold the CITY harmless for ajjiy and all
taxes,contributions,withholdings,fees,attorneys'fees,interest and/or penaltiesowed or claimed
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tobeowed by the CITY ontheseamountsandassumeanyandallliabilityforallsuchtaxes,
interest,or penalties assessed against the CITY.PLAINTIFFS will also indemnityCITY for any
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and all costs,interest,and attcjrneys'fees paid or owed by the CITY as a result of jny claim
madebyany federal,state,orlocalagencyfortaxes,penalties,costs,interest,fees,or
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contributions that allegedly are jowing as aresult ofthe amounts paid to PLAINTIFFS ijinder this
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Agreement.
9.Encouragement toConsultAttorneyand Time for Consideration.
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A.Representation bv Legal Counsel.The CITY encouraged PLAINTIFFS to
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consult their attorney regarding theterms of thisAgreementbeforesigningtheAgreement,and
PLAINTIFFS acknowledge that theydid,in fact,consultwiththeir attorney regarding theterms
of this Agreement.PLAINTIjRFS acknowledge that they have had their attorney review this
STROFACE
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Agreement and that each one jmderstands the legal effect ofthis Agreement and their rights and
obligations underthe Agreement
B-Time to Consider Signing Agreement.PLAINTIFFS acknowledge that
they have been given a reasonable period of time of not less than twenty-one (21)dtys within
which to decide whether to sign this Agreement.PLAINTIFFS understand and agree that they
can use all or any part of this period to decide whether to sign this Agreement.
c-Seven (7)Dav Period to Revoke.PLAINTIFFS understand tha|each one
may revoke this Agreement within seven (7)calendar days after he signs the Agreement*If
either PLAINTIFF revokes Ithe Agreement,however,the Agreement will bt deemed
unenforceable as to the indiviliual who revoked it,will be considered null and void as to that
person,and the CITY shall bfc relieved of all obligations stated in this Agreement as to that
i
person.Upon revocation of this Agreement by one (1)PLAINTIFF,the Agreement will remain
in full force and effect as to me other PLAINTIFF,unless the other PLAINTIFF also revokes
this Agreement.To be an effective revocation,any revocation must be in writing,executed by
PLAINTIFFS and delivered'to James C.Crosland,at the law firm of AISRMAN
SENTERFITT,28th Floor,One Southeast Third Avenue,Miami,Florida 33131-1714,on or
before the seventh calendar da*y after they sign the Agreement by or before 5:00 p.mj.(Eastern
Time).The revocation must expressly state "1 hereby revoke the Agreement"
For purposes of computing this seven (7)day period,the date PLAINTIFFS sign the
Agreement should not |be included.The last day of the period so computed shall be
included,unless it is a Saturday,Sunday,or legal holiday,in which event the period of
time prescribed runs unidl the end of the next day which is not one of the aforementioned
days.Intermediate SaWdays,Sundays,and legal holidays shall be inciudjed in the
computation.|
STROFACE
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D.Effective Date.PLAINTIFFS acknowledge thatthis Agreement shall not
become effective and enforceable until the seven (7)day revocation period has expired and it is
approved by the City Commission.The CITY will execute the Agreement after the seven (7)
day revocation period has expired and provided that the City Commission approves the
Agreement.I
E,Approval bv Citv Commission.PLAINTIFFS acknowledge that this
Agreement is contingent upon ipproval by the City Commission,If the City Commissioj trejects
this Agreement the parties will'return to the status quo.
10.Governing Law land Interpretation.
This Agreement shall tje governed by and construed in accordance with the iavjs of the
i
State of Florida,and where arjplicable,federal laws.The language of this Agreement
construed as a whole,according to its fair meaning,and not strictly construed for or
eitherparty,
11.Severability,j
Should any court of competent jurisdiction declare illegal or unenforceable any provision
of this Agreement (which proyision cannot be modified to be enforceable),such provis ion shall
i
irnmediately become null and void,leaving the remainder of this Agreement in full
effect.j
12.Entire Agreement:Amendment;Signatures.
This Agreement and its attachments set forth the entire agreement between die parties
and supersede any and all 'prior agreements or understandings between the partbs.This
Agreement may not be amended except by awritten agreement signed by the parties or
their respective ad^ninistrators,trustees,personal representatives,or successors.
Dl
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STROFACE
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shall be
i
against
ibrce and
signed by
t CITY
AUG-28-06 01:46PM FROM-
13.Headings.
Section headings are lised in this Agreement for ease of reference only an4 shall not
affect the meaning ofany provision ofthis Agreement.
14.Disputes.
Inthe event that any party to this Agreement institutes legal proceedings for breach of the
!
terms ofthis Agreement,it Is stipulated and agreed thatsuchaclaimshallbe beard and
deterrnined by the court,not by a jury.Furthermore,in the event that it shall be necessary for
anyPartytothisAgreement to institutelegalactiontoenforceany of thetermsand coi iditions or
provisions contained herein,dr for any breach thereof,the prevailing party shall be (entitled to
costs and reasonable attorney'sfeesup through any appeals.
15.Entire Agreement.
PLAINTIFFS acknowledge thattheyhave carefully readand understand this Agreement
and agree that the CITY has 'not made any representations other than those contaired herein.
Each Plaintiff also acknowledge that each enters into this Agreement voluntarily,without any
pressure or coercion,andwithfull knowledge ofits significance,andthatthis Agreement
constitutes a FULL AND ABSOLUTE SETTLEMENT AND BAR AS TO ANY ^ND ALL
CLAIMS eachhad,have,ormayhaveagainsttheCITY.
16.Acknowledgement.
i
THE PARTIES HAVfe READ,UNDERSTOOD,AND FULLY CONSIDERED THIS
AGREEMENT CONSISTING OF TWELVE (12)PAGES AND ONE EXHIBIT iUSID ARE
MUTUALLY DESIROUS OF ENTERING INTO SUCH AGREEMENT.THE T5RMS OF
THIS AGREEMENT ARE THE PRODUCT OF MUTUAL NEGOTIATION \AND
STROFACE
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!1A^
cm
AUG-28-06 01:46PM FR0M-T-475 P.26/26 F-013
COMPROMISE BETWEEN PLAINTIFFS AND THE CITY.HAVING ELECTED TO
EXECUTE THIS AGREEMEW\TO FULFILL THE PROMISES SET FORTH HEREI tf,AND
TO RECEIVE THEREBY THE BENEFITS SET FORTH ABOVE,PLAINTIFFS IREELY
•
AND KNOWINGLY,AND AFTER DUE CONSIDERATION,ENTER INT({)THIS
AGREEMENT INTENDING TO RELEASE,WAIVE,AND SETTLE ALL CLAIMS THAT
THEY HAVE OR MIGHT NOW HAVE AGAINST THE CITY.
JosephDuran
TW-fi>£~/f^0 L
Michael Stroface
Date:_
Approved By:
Eddy Marban,Esquire
CounselforPlaintiffs
STROFACE
The City of South Miami
Yvonne McKinle
tfjty Manager
Date:
Approved By:
JamesC.Crosland,Esquire
DeniseM.Heekin,Esquire
Counsel for Defendant
12 of 12
\Mh^
1CITY
AUG-28-06 01:47PM FROM-AKERMAN SENTERFITT 305-374-5095 T-214 P.01/02 F-327
Fon Lauderdale
Jacksonville
Madi>on
Miaifli
New York
Orlando
Tallahassee
T4inpa
TysonsCorner
Washington,DC
Wesi Palm Beach
From:Denise M.Heckin
FAX COVER SHEET
PlEASE DELIVER 2PAQE(S)(including <fover sheet)TO:
Name:Jeaaette Navarro
Company:City ofSouth Miami j
Please call (30S)374-5600 Ext 40016 if yoji do not receive all the pages.
Akerman S^nterfitt
ATTORNEYS AT UAW
One SomhcBSi Third Avenjic
28lh floor
Miami.Florida 33131-171|4
www.akmnttn com
305 374 5600 ft./305 3*5Q9S/<W
Date:/august 28,2006
Fax Number:305-668-387'F
Phone Number:305-668-251^
Comments/Special Instructions
may otherwise be
iflthejreader of this
recipiem,you are
prohibited.If you have
tT^t)<tminal tous
privileged and coridnu,jmiaW onhrte*^™!£J«SoSue»^untbc jp^Umml «•w»the intended rec.pieat '^^^^^^S^mMn Ustrictly prohib
Kyim^n Thank vou.
git™
Client/Matter No:145273.—!
Equitrac ED:,_5929
AUG-28-06 01:39PM
f on Lauderdale
Jacksonville
las Angeles
Madison
Miami
New York
Orlando
Tallahassee
Tampa
Tysons Comer
Washington.DC
West Palm Beach
From:Denise M.Heekin
FAX COVER SHEET
PLEASE DELIVER 32 PAGE(S)(including cover sheet)TO:
Name:
Company:
Jeanette Navarro
City of SouthMiami
Please call (305)374-5600 Ext,40016 if yoju do not receive all the pages.
T-475 P.01/26 F-013
ATTORNEYS ATLAW
One Southeast Third Avejme
28tb Floor |
Miami.Florida 33131-1714
www.alcerman.com
305 374 5600 Kl 305 3J74 5095/a*
Date:August 28,2006
Fax Number:305-668-3877
Phone Number:305-668-2515
Comments/Special Instructions
The information contained in this transmission maybea confidential attorney-client communication ormay othenvise be
privileged and confidential,intended onli for the wse of the individual or entity named above.If ijie reader of this
transmittal is not the intended recipient or jthe employee or agent responsible to deliver itto the intended.
hereby notified that any dissemination,distribution or copying of this communication is strictly probib ted.If you have
received this communication in error,please immediately notify us by telephone and return the originaltTartBnltt"1 TA ,,c
bvmail.Thank vou.
Client/Matter No:145273
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Equitrac E):5929
AUG-28-06 01:39PM FROM-T-475 P.02/26
INf THE CIRCUIT CJOURT OF THE ELEVENTH JUDICIAL CIRCUIT
INANDFOR M1AMMDADE COUNTY,FLORIDA
JOSEPH DURAN,and others
similarly situated,
Plaintiff,
vs.
CASE NO.:05-13481 CA04
THE CITY OF SOUTH MIAMI,;
aFlorida Municipality,j
Defendant.
F-013
MOTION BY PLAINTIFF DIJTRAN.PLAINTIFF STROFACE.AND DEFENDANT CITY
TO APPROVE SETTLEMENT AflRTCEMENT
ANPTO DISMISS COMPLAINT WITH PREJUDICE
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Plaintiff Joseph Duran,Plaintiff Michael Stroface,and Defendant the City of South Miami,
through their respective undersigned counsel,hereby file this Motion to Approve Settlement
Agreement and to Dismiss with Prejudice.1
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PRELIMINARY STATEMENT
Plaintiffs filed their Complaint on or about June 24,2005.Plaintiffs allege that Defendant
violated the Fair Labor Standards Act,29 U.S.C.§201,et seq.("FLSA"),by failing to pay them
time and one-half their regular hourly rate for work performed in excess of forty (40)hoars per
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week.Defendant denies any wrongdoing under the FLSA,and denies that Plaintiffs are owed any
additional compensation.However,to avoid the costs and uncertainty oflitigation,Plaintiff Duran,
Plaintiff Stroface,and the City have negotiated a settlement in this matter.Pursuant to Lynn's Food
Stores.Inc.v.United States,67?F.2d 1350 (Utb Cir.1982),claims for back wages arising under
the FLSA may be settled or compromised only with the approval of the court or the Secretary of
1 Plaintiff Suarez does not join in this Motion and is not a party to the settlement agreement
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SETTLEMENT AGREEMENT AND GENERAL MUTUAL RELEASE
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This SETTLEMENT JAGREEMENT AND GENERAL MUTUAL RELEASE
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("Agreement")is entered intoby JOSPEH DURAN ("DURAN")and MICHAEL STROFACE
("STROFACE")(collectively referred to herein as "PLAINTIFFS"),andthe CITY OF SOUTH
MIAMI,itsrelatedentities,corporations,partnerships,subsidiaries,andsubdivisions,as wellas
their respective current and former council persons,officials,directors,officers,agents,
departmentheads,supervisors,employees,attorneys,insurers,successorsin interest,
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representatives and agents,both in their official and individual capacities (collectively re:erred to
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hereinafter asthe "CITY").!
WHEREAS,PLAlNTIFfS filed or joined ina lawsuit against the CITY inthe Eleventh
JudicialCircuitinandfor Miami-Dade County,Florida,styled Joseph Duran.andothers
similarlysituatedv.TheCitv of SouthMiami.CaseNo.05-13481 CA04("CaseNo.05-13481
CA 04"),alleging claims undertheFair Labor Standards Act ("FLSA");
WHEREAS,the CITY denies all of the allegations made by PLAINTIFFS in CJase No.
05-13481 CA 04;and,
WHEREAS,the parties prefer to avoid the uncertainties and expenses of further litigation
and disputes,and instead,desire to set forth this Agreement,without establishing precedent,the
termsandconditions of thesettlement of PLAINTIFFS1 claims,including therelease of anyand
all claims thatthey have-or could possibly have against the CITY,in exchange for the
consideration described herein.;
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NOW,THEREFORE,in consideration oftheir mutual promises and other gdod and
valuable consideration,receipt of which is hereby acknowledged,the parties,intendiijig to be
legallybound,agreeasfollows:
DURAN
IM2421003;1}
STROFACE (jCVTY
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AUG-28-0601:40PM FROM-T-475 P.04/26 F-013
1.Execution of Agreement andJointStipulationfor Dismissal With Prejudiceasto
Plaintiffs.
Should either Plaintiff1 fail or refuse to execute this Agreement for any reason,this
Agreement shallbedeemedinvalidand unenforceable astothatPlaintiff,and CITY shall be
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relieved of all obligations imposed by this Agreement astothat Plaintiff.Each Piantiff will
authorize hisattorney,Eddy O.Marban,Esquire,toexecuteoneachone's behalf theJoint
Motion for Approval of Settlement Agreement andto Dismiss ActionWith Prejudice ("Joint
Motion")thatis attached tothisAgreementasExhibit1,thereby agreeing todismissCaseNo.
05-13481 CA 04 with prejudice(eachpartytobearits own costsandfees except as delineated in
this Agreement).Upontheeffective date of this Agreement,eachPlaintiffwill Jirect his
attorney to return the properly-executed Agreement and the original,properly-executed Joint
Motion to counsel for CITY,James C.Crosland,atthe law firm of AKERMAN SEN:'ERFITT,
28th Floor,Southeast ThirdAvenue,Miami,Florida 33131-1714.Uponreceipt of he same,
Counselfor CITY shall execute andfiletheJoint Motion with the Courtandsetitforhearing
upon the Court's Motion calendar.
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2.Consideration.:
In consideration for FIJ^'TIFFS*agreement to dismiss Case No.05-13481 £A 04,to
execute this Agreement andthe Joint Motion,and togivethe release stated inthis Agreement,in
addition to fulfilling the other promises set forth herein,theCITY agrees topaythe total amount
of Thirty One Thousand Five Hundred Dollars ($31,500.00)to be split between the
PLAINTIFFS and their attorney in full and final settlement of this matter.Upon execution of
this Agreement,PLAINTIFFS1 counsel will provide the City's counsel will the exact breakdown
ofthe amounts to be paid to each PLAINTIFF and to their counsel.Any portion that is paid to
•Cl
DURAN
{M2421C03;!}
STROFACE'y CITY
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AUG-28-0601:40PM FROM-T-475P.05/126 F-013
PLAINTIFFS will be minus applicable employment withholdings,deductions,and taxes,and
any portion that is paid to PLAINTIFFS'attorney (Tax Id No.59-2816454)willbe reported on
an IRS Form 1099 to PLAINTIFFS'counsel.The payments specified herein shall be (tendered
within ten (10)calendar days ofjthe Court's entry ofthe Order Approving Settlement.
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3.No Lawsuits or Claims.
PLAINTIFFS each represent and agree that hewillnot hereafter pursue,initiate,or cause
tobe instituted against the CfTY any dispute released herein.PLAINTIFFS each further
represent thathedoesnotcurrentlyhavependingbeforeanycourtorbeforeany federal,stateor
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local agency any dispute of any!kind against the CITY other than Case No.05-13481 CA 04.If
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itis deterrnined that PLAINTIFFS,eitherindividuallyortogether,haveanyother lawsuit,charge
of discrurunation,orotherclaimpending against theCITY,each agrees todismiss imy such
claims,with prejudice,immediately upon deterrruning thatsuchchargeorclaimis pendii lg.
PLAINTIFFS agree that1 with respect to the claims each is waiving,each is waiving not
only his right to recover money*or other relief in any action that he might institute but also that
heiswaivinghisrightto recover money orotherreliefinanyactionthat might bebroughtonhis
behalf by anyotherpersonorentity including,butnotlimitedto,theState of Florida,theUnited
States Equal Employment Opportunity Commission C^EOC**),the Department cf Labor
("DOL")»or any other (U.S.!or foreign)federal,state,or local agency or department.
PLAINTIFFS each further represent that neither has heretofore assigned or transfisred,or
purported to have assigned or transferred,to any entity or person any dispute released hejrein.
4.General Mutual Release and Waiver of Claims.j
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In exchange for the consideration described in this Agreement,PLAINTIFFS irrevocably,
knowingly,and voluntarily release,waive,and forever discharge any and all claims,(Jeraands,
DURAN
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actions,or causes of action,of any kind whatsoever,known or unknown,foreseen or ui iforeseen,
foreseeable or unforeseeable,and any consequences thereof,which each has or may have against
of the world until the effective date of this Agreement The
disputes released by PLAINTIFFS include,but are not limited to,any and all disputes against the
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CITY concerning each one's employment,and resignation or termination of each one's
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employment withthe CITY,j
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iThedisputesreleasedjby PIjUNTIFFS include those known or unknown,actual or
contingent,in law,in equity,or otherwise,and whether based in tort,contract,statuie,or any
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other basis.This release includes all disputes for which PLAINTIFFS could seek equitable
relief;and actual,compensatory,consequential,liquidated,punitive,special,multiple or other
damages,expenses (including attorneys'fees and costs),and all other reimbursements cr charges
of any kind.The disputes released by PLAINTIFFS include,but are not limited to,any claim(s)
under:
DURAN
{M24210O3;!}
Title VIIof the (pivil Rights Actof 1964;
The Civil Rights Act of 1991;
TheFlorida Civil Rights Act of 1992;
Sections1981through1988 ofTitle42 of theUnitedStatesCode;
TheConstitutions oftheUnitedStatesandtheState of Florida;
The Employee Rletirement Income Security Act of 1974;
The Florida Heajth Insurance Coverage Continuation Act;
TheFlorida Wage Discrirnination Law;
Florida Wage and Hour laws;
Any Floridaorfederal whistleblower laws;
The Internal Revenue Code;
The Rehabilitation Act;
TheConsolidatedOmnibusBudgetReconciliationAct;
The Immigration Reform and Control Act of 1986;
The Americans with Disabilities Act of 1990;
The Age Discrimination inEmployment Act,includingtheOlder
Benefit Protection Act;
The Fair Labor Standards Act;
The Equal PayAct of 1963;
aJ&
STROFACE
4 of 12
Workers
CITY
AUG-28-0601:40PM FROM-
The Occupational Safety and Health Act;
TheFamilyandMedicalLeave Act of 1993;
TheNationalLaborRelationsAct;or
Any other federal,state,or local civil or human rights law or any othe(:federal,
state,or local law,regulation,or ordinance.
The disputes released by PLAINTIFFS also include any and all disputes they havi or may
believe themselves tohave against theCITYin contract oratcommonlaw,including,butnot
limited to,breach of oral,writtejn and/or implied contract,breach of an implied covenan:of good
faith and fair dealing,wrongful!discharge under any theory,including for lack of good cause,in
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violation of public policy,and constructive discharge,intentional and negligent infliction of
emotional distress,negligent retention and supervision,assault,battery,negligence,
misrepresentation or fraud of any kind,duress,unfair dealing,breach of fiduciary orot jer duty,
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invasion of privacy,defamation,false imprisonment,and interference with contract and/or
prospective economic advantage
The reference hereinto Specific statutory,contract andcommonlawclaimsisinnoway
intended to limit the disputes released by PLAINTIFFS.PLAINTIFFS intend that the disputes
released by eachone herein be construed asbroadlyas possible to cover any andalldisputes
each mayhaveorbelievehimselftohave against theCITY.Inthat regard,PLAINTIFF S further
acknowledge thattheymaylaterdiscover facts in addition toordifferentfromthose winch they
nowknoworbelievetobetruewithrespecttothesubjectmatter of thisAgreement.
PLAINTIFFS agree that any such difference in the facts shall not affect this Agreenfent;'that
they assume therisk of anysuchdifferenceinthe facts;andthat they further agree thatthis
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Agreement shall remain in full Jforce and effect and not be subject to rescission by reascn ofany
such difference in the facts.
DURAN
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PLAINTIFFS also each 'agree and acknowledge that this Agreement is also pursuant to
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Section 440.20(1 l)(c)(d)and (e),Florida Statutes,and is intended tobea complete and final
settlement of any and all workers*compensation benefits under Chapter 440,Florida Statutes,
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including,but not limited to,future medical benefits,PLAINTIFFS also each stipulate that all
accidents,injuries,repetitive traumas,exposures,and occupational diseases knowntohave
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occurred orbeensustainedwhileemployedbythe CITY havebeenrevealed.PLAINTIFFS each
agree that this Agreement includes all accidents,occupational diseases and injuries siistained
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whileemployed by theCITY,whether reported ornot.ItisPLAINTIFFS'intentiono fully,
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finallyand forever resolveandreleaseanyandalldisputesthateach may haveorbelieve himself
tohaveagainstthe CITY with respecttoanyallegedactsoccurring before the effective date of
this Agreement,whetherthose disputes presently are knownorunknown,suspejcted or
unsuspected.'
The CITY also hereby1 knowingly and voluntarily releases,waives,and forever
discharges any and all claims,'rights,demands,actions or causes of action,of anykind
whatsoever,known or unknownj foreseen or unforeseen,foreseeable or unforeseeable,;md any
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consequences thereof,which |t may have against PLAINTIFFS,either individually'or
collectively,from the beginning'of the world until the effective date of this Agreement.The
disputes released by the City include any and all disputes it has or believes itself to have against
PLAINTIFFS in contract oratcommon law,including,butnotlimitedto,breach of oral,written
and/or implied contract,breach of an implied covenant of good faith and fair dealing,wrongful
discharge under any theory,misrepresentation or fraud of any kind,duress,unfair dealing,
breach of fiduciary or other duty,and interference with contract and/or prospective economic
advantage.The reference herein'to specific statutory,contract and common law claims |s in no
DURAN
{M2421003;}}
STROFACE
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AUG-28-0601:41PM FROM-T-475 P.09/26 F-013
wayintendedtolimitthedisputes released by the CUY.The CITY intendstoand does release
any and all claims that itmayhave against PLAINTIFFS,either individually or collect*'ely.
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5.No Future Emplbvment.
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PLAINTIFFS agree thattheywillnotseek employment or reinstatement with
asa full-time,paidemployee ofthe CITY.
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6.NoAdmission Of liability Or Wrongdoing.
PLAINTIFFS agree that nothing contained in this Agreement or otherwise shall
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constitute or be construed as ah admission of any alleged liability or wrongdoing by tie CITY.
Indeed,the CITY denies that itlengaged in any wrongdoing ofany kind with respect to iny ofthe
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PLAINTIFFS.
7.Tnriemnjfy |
PLAINTIFFS acknowledge that all costs and/or attorneys'fees liens,
compensation hens,and all medical liens and bills for medical,hospital,ambulance and/or
nursing care,treatment,diagnosis,or examination of PLAINTIFFS arising out of or related to
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the claims asserted in,or that could have been asserted in connection with PLAIOTIFFST
have or will be paid in full by PLAINTIFFS out ofthe proceeds ofthis Agreement,
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PLAINTIFFS agree to mis indemnityprovisionforthepurpose of inducingthe
settle Case No.05-13481 CA
DURAN
{M2421003;l}
STROFACE
be CITY
workers'
*lawsuit,
CITY to
04andin consideration forthefundspaidasset fonh inthis
Agreement.PLAINTIFFSagreeto indemnity andholdthe CITY harmless of andfromanyand
all bills,sums,amounts,debts,liens,demands,claims,promises,damages,judgments,and
executionsinlaworinequity,for attorneys'fees and/or costs,medical,hospital,ambulance
and/or nursing care,treatment,diagnosis or examination arising out of or related to Cas<>No.05-
13481 CA 04,orany other allegation that Was made or could have been made by PLAIN TIFFS.
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f cm
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AUG-28-0601:41PM FR0M-T-475 P.10/26 F-013
8.TaxConsequences of Settlement.
PLAINTIFFS understand and agree that should the IRS,or any other taxing authority or
other federal,state,or local agency assert,argue,or determine that any money receivec or paid
pursuant to this Agreement,that was not subject to withholding and/or deductions,is;taxable
wages,income,or benefits of arjy kind,PLAINTIFFS will be solely and individually responsible
for the payment of any and all jtaxes,contributions or withholdings (whether they are allegedly
due from PLAINTIFFS,the CllY,or any combination thereof)including,but not limited to,any
related attorneys*fees,interest,jcosts,penalties,or other charges regardless of whether the CITY
should have withheld or paid sJch taxes or made such contributions (including Social Security or
Medicare).PLAINTIFFS wiU indemnify,reimburse,and hold the CITY harmless for at y arid all
taxes,contributions,withholdings,fees,attorneys'fees,interest and/or penalties owed a:claimed
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to be owed by the CITY on thjese amounts and assume any and all liability for all such taxes,
interest,or penalties assessed a^st the CITY.PLAINTIFFS will also indemnify CITf for any
and all costs,interest,and attorneys'fees paid or owed by the CITY as a result of eny claim
made by any federal,state,!or local agency for taxes,penalties,costs,interest,fees,or
contributions that allegedly are1 owing as aresult ofthe amounts paid to PLAINTIFFS tinder this
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Agreement
9.Encouragement to Consult Attorney and Time for Consideration.
A.Representation by Legal Counsel.The CITY encouraged PLAINTIFFS to
consult their attorney regarding the terms of this Agreement before signing the Agree nent,and
PLAINTIFFS acknowledge that they did,in fact,consult with their attorney regarding the terms
of this Agreement.PLAINTIFFS acknowledge that they have had their attorney rjview this
DURAN
{M242lO03;n
&_
STROFACE
8 of 12
Yp£^'
CITY
AUG-28-0601:42PM FROM-T-475 P.11/26 F-013
Agreementandthateachoneunderstandsthelegal effect of this Agreement andtheir rights and
obligations underthe Agreement
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B.Time to IConsider Signing Agreement.PLAINTIFFS acknowledge that
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theyhavebeengivenareasonableperiod of time of notlessthan twenty-one (21)days vrithin
which to decide whether to sigp this Agreement.PLAINTIFFS understand and agree that they
canuse all orany part of thisperiodto decide whethertosignthisAgreement.
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C.Seven (7)Dav Period to Revoke.PLAINTIFFS understand that each one
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may revoke this Agreement within seven (7)calendar days after he signs the Agreerient.*If
either PLAINTIFF revokes the Agreement,however,the Agreement will be
unenforceable asto the indiviaual who revoked it,will be considered null and void astothat
person,and the CITY shall be relieved of all obligations stated inthisAgreement *s tothat
person.Uponrevocation of thisAgreement by one(1)PLAINTIFF,the Agreement willremain
in full force and effect as to tr|e other PLAINTIFF,unless the other PLAINTIFF alsc revokes
this Agreement.Tobeaneffective revocation,any revocation mustbein writing,executed by
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PLAINTIFFS and delivered 'to James C.Crosland,at the law firm of AKERJ^AN
SENTERFITT,28*Floor,One Southeast Third Avenue,Miami,Florida 33131-171)4,tin or
beforetheseventh calendar dayaftertheysigntheAgreement by orbefore5:00p.m.(Eastern
Time).The revocation must expressly state "I hereby revoke theAgreement'
For purposes of computing this seven (7)day period,the date PLAINTIFFS
Agreement should not j*e included.The last day of the period so computed
included,unless itisa Saturday,Sunday,or legal holiday,inwhicheventthe
time prescribed runs unljil the end ofthe next day which is not one ofthe;
days.Intermediate Saturdays,Sundays,and legal holidays shall be included
computation.
deemed
signthe
shall be
period of
aforementioned
in the
sfe.Qj^tVt^
tDURANSTROFACE CITY
(M2421003;!}9 of 12
AUG-28-0601:42PM FR0M-T-475 P.12/26 F-013
D.Effective Ipate.PLAINTIFFS acknowledge that this Agreement saall not
becomeeffectiveand enforceable untiltheseven(7)day revocation periodhasexpiredanditis
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approved by the City Commissipn.The CITY will execute the Agreement after the seven (7)
day revocation period has expired and provided that the City Commission approlves the
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Agreement.I
E.Approval |bv Citv Commission.PLAINTIFFS acknowledge toat this
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Agreement is contingent upon approval by the City Commission.If the City Commission rejects
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thisAgreement,thepartieswill return tothe status quo.
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10.Governing Law afrd Interpretation.
This Agreement shall be!governed by and construed in accordance with the lawjs of the
State of Florida,and where applicable,federal laws.The language of this Agreement
construed as a whole,according to its fair meaning,and not strictly construed for or
eitherparty.
11.Severability.!
Should any court of competent jurisdiction declare illegal or unenforceable any provision
of this Agreement (which provision cannot be modified to be enforceable),such provision shall
immediately become null and void,leaving the remainder of this Agreement in full force and
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effect.•'
12.Entire Agreement;Amendment:Signatures,
This Agreement and its;attachments set forth the entire agreement between th|*parties
and supersede any and all prior agreements or understandings between the partie,.This
Agreement may not be amended except by awritten agreement signed by the parties or signed by
their respective administrators,trustees,personal representatives,or successors.
—ii jDURANSTROFAdE
{M2421C03;!}I0ofl2
shall be
against
.(.
CITY
AUG-28-0601:42PM FROM-T-475 P.13/26 F-013
13.Headings.|
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Section headings are used in this Agreement for ease of reference only and
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affect the meaning of any provision of this Agreement.
14.Disputes.
In the event that any party to this Agreement institutes legal proceedings for breich of the
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terms of this Agreement,it ijs stipulated and agreed that such a claim shall be leard and
determined by the coun,not by a jury.Furthermore,in the event that it shall be necessary for
any Party to this Agreement to institute legal action to enforce any ofthe terms and con iitions or
provisions contained herein,or for any breach thereof,the prevailing party shall be entitled to
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costs and reasonable attorney's fees up through any appeals.
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15.Entire Agreement.
PLAINTIFFS acknowledge that they have carefully read and understand this Agreement
and agree that the CITY hasnot made any representations other than those containei herein.
Each Plaintiff also acknowledge that each enters into this Agreement voluntarily,witiout any
pressure or coercion,and witi full knowledge of its significance,and that this Agreement
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constitutes a FULL AND ABSOLUTE SETTLEMENT AND BAR AS TO ANY Am ALL
CLAIMS each had,have,or may have against the CITY.
16.Acknowledgement.
THE PARTIES HAVE 'READ,UNDERSTOOD,AND FULLY CONSIDERED THIS
AGREEMENT CONSISTING JOF TWELVE (12)PAGES AND ONE EXHIBIT A*ID ME
MUTUALLY DESIROUS OF JENTERING INTO SUCH AGREEMENT.THE TEILMS OF
THIS AGREEMENT ARE JTHE PRODUCT OF MUTUAL NEGOTIATION AND
___ak-i
DURANSTROFACE
!;
{M2421003U}11Of 12
shall not
AUG-28-06 01:42PM FROM-T-475 P.14/26 F-013
COMPROMISEBETWEEN PLAINTIFFS ANDTHECITY.HAVINGELECTEDTO
EXECUTE THIS AGREEMENT TO FULFILL THE PROMISES SET FORTH HEREIN,AND
TO RECEIVE THEREBY THE BENEFITS SET FORTH ABOVE,PLAINTIFFS FREELY
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AND KNOWINGLY,AND !AFTER DUE CONSIDERATION,ENTER INTO THIS
AGREEMENT INTENDINGTORELEASE,WAIVE,ANDSETTLEALL CLAIM?THAT
THEY HAVE OR MIGHT NOW HAVE AGAINST THE CITY.
Joseph Duran
Date:
Michael Stroface
ApprovedBy:
Eddy Marban,Esquire
Counsel for Plaintiffs
DURAN ACE
{M2421003;!}
The City of South Miami
By:,\hTMwL
Yyc nne McKinley
Cm Manager
Date:
ApprovedBy:
James C.Crosland,Esquire
DeniseM.Heelcin,Esquire
Counsel for Defendant
12 of 12
(TCITY
SETTLEMENT AGREEMENT AND GENERAL MUTUAL RELEASE
This SETTLEMENT AGREEMENT AND GENERAL MUTUAL RELEASE
("Agreement")isenteredintobyJOSPEHDURAN("DURAN")andMICHAELSTROFACE
("STROFACE")(collectivelyreferredtohereinas"PLAINTIFFS"),andthe CITY OFSOUTH
MIAMI,itsrelatedentities,corporations,partnerships,subsidiaries,andsubdivisions,aswellas
their respective current and former council persons,officials,directors,officers,agents,
department heads,supervisors,employees,attorneys,insurers,successorsin interest,
representatives and agents,bothintheir official and individual capacities (collectively referred to
hereinafter as the "CITY").
WHEREAS,PLAINTIFFS filedorjoinedinalawsuitagainsttheCITYintheEleventh
Judicial Circuit inandfor Miami-Dade County,Florida,styled Joseph Duran.and others
similarly situated v.The City of South Miami.Case No.05-13481 CA04("CaseNo.05-13481
CA04"),allegingclaimsundertheFairLabor Standards Act ("FLSA");
WHEREAS,theCITYdeniesallofthe allegations madeby PLAINTIFFS inCaseNo.
05-13481 CA 04;and,
WHEREAS,the parties prefer to avoid the uncertainties and expenses of further litigation
and disputes,and instead,desire toset forth this Agreement,without establishing precedent,the
terms and conditions ofthe settlement of PLAINTIFFS'claims,including the release of any and
all claims that they have or could possibly have against the CITY,in exchange for the
consideration described herein.
NOW,THEREFORE,in consideration of their mutual promises and other good and
valuable consideration,receipt of which is hereby acknowledged,the parties,intending tobe
legally bound,agree asfollows:
DURANSTROFACE CITY"
{M2421003;!}lofl2
1.Execution of Agreement andJointStipulationfor Dismissal With Prejudiceasto
Plaintiffs.
Should either Plaintiff failorrefuseto execute this Agreement foranyreason,this
Agreement shallbedeemedinvalidandunenforceableastothatPlaintiff,and CITY shallbe
relieved of allobligations imposed by this Agreement astothatPlaintiff.Each Plaintiff will
authorizehisattorney,Eddy O.Marban,Esquire,to execute on eachone's behalf theJoint
Motion for Approval of Settlement Agreement andto Dismiss Action With Prejudice("Joint
Motion")thatis attached to this Agreement as Exhibit 1,thereby agreeing to dismiss Case No.
05-13481 CA 04 with prejudice(eachpartytobearits own costsandfees except asdelineatedin
this Agreement).Upon the effective date of this Agreement,each Plaintiff will direct his
attorneytoreturn the properly-executed Agreement andthe original,properly-executed Joint
Motion to counsel for CITY,James C.Crosland,at the law firm of AKERMAN SENTERFITT,
28thFloor,SoutheastThird Avenue,Miami,Florida 33131-1714.Upon receipt of thesame,
Counselfor CITY shall execute andfiletheJointMotion with the Courtandsetitforhearing
upon theCourt's Motion calendar.
2.Consideration.
In consideration for PLAINTIFFS'agreementto dismiss Case No.05-13481 CA 04,to
execute this Agreement andtheJointMotion,andtogivethereleasestatedinthis Agreement,in
additiontofulfillingtheotherpromisessetforthherein,the CITY agreestopaythetotalamount
of ThirtyOneThousandFiveHundred Dollars ($31,500.00)tobesplitbetweenthe
PLAINTIFFSandtheirattorneyinfulland final settlement of thismatter.Uponexecution of
this Agreement,PLAINTIFFS'counsel will providethe City's counsel will the exact breakdown
of theamountstobepaidtoeachPLAINTIFFandtotheircounsel.Any portionthatispaidto
DURAN STROFACE CITY
{M2421003;!}2ofl2
PLAINTIFFS willbe minus applicable employment withholdings,deductions,andtaxes,and
any portion thatispaidto PLAINTIFFS'attorney (TaxIdNo.)willbe reported
onanIRSForm1099toPLAINTIFFS'counsel.Thepaymentsspecifiedhereinshallbe
tendered withinten(10)calendar days ofthe Court's entry ofthe Order Approving Settlement.
3.No Lawsuits or Claims.
PLAINTIFFSeach represent and agree thathewillnothereafter pursue,initiate,orcause
tobeinstitutedagainstthe CITY anydisputereleasedherein.PLAINTIFFSeach further
represent thathedoesnot currently have pending beforeanycourtorbeforeany federal,state or
localagencyanydispute of anykind against the CITY otherthanCaseNo.05-13481 CA 04.If
itis determined that PLAINTIFFS,either individually or together,have any other lawsuit,charge
of aUscrirriination,or other claim pending against theCITY,each agrees to dismiss any such
claims,with prejudice,immediately upon determining that such charge or claim is pending.
PLAINTIFFS agree that with respect tothe claims each is waiving,each is waiving not
onlyhisrightto recover moneyor other reliefinanyactionthathemight institute but also that
heis waiving his right to recover money or other reliefin any action that mightbe brought onhis
behalfbyany other person orentity including,butnotlimitedto,the State of Florida,the United
States Equal Employment Opportunity Commission ("EEOC"),the Department of Labor
("DOL"),or any other (U.S.or foreign)federal,state,or local agency or department.
PLAINTIFFS each further represent that neither has heretofore assigned or transferred,or
purported tohave assigned or transferred,toanyentityor person any dispute released herein.
4.General Mutual Release and Waiver nf Claims
In exchange for the consideration described inthis Agreement,PLAINTIFFS irrevocably,
knowingly,and voluntarily release,waive,and forever discharge any and all claims,demands,
DURANSTROFACE CTTy
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actions,orcauses of action,of any kind whatsoever,known or unknown,foreseenor unforeseen,
foreseeable orunforeseeable,andanyconsequencesthereof,which eachhasor may haveagainst
the CITY fromthebeginning of theworlduntilthe effective date of thisAgreement.The
disputesreleased by PLAINTIFFSinclude,but are notlimitedto,anyandalldisputesagainstthe
CITY concerningeachone's employment,andresignationortermination of eachone's
employment with the CITY.
Thedisputesreleased by PLAINTIFFS includethose known or unknown,actualor
contingent,inlaw,inequity,or otherwise,andwhetherbasedin tort,contract,statute,orany
other basis.This release includes all disputes for which PLAINTIFFS couldseek equitable
relief,and actual,compensatory,consequential,liquidated,punitive,special,multipleor other
damages,expenses (including attorneys'fees and costs),and allother reimbursements or charges
of any kind.The disputes released by PLAINTIFFS include,but are not limited to,any claim(s)
under:
Title VII ofthe Civil Rights Act of 1964;
The Civil Rights Act of 1991;
The Florida Civil Rights Act of 1992;
Sections 1981 through1988 of Title42 oftheUnitedStatesCode;
TheConstitutions oftheUnitedStatesandtheState of Florida;
The Employee RetirementIncomeSecurity Act of 1974;
The Florida Health Insurance CoverageContinuationAct;
TheFlorida Wage Discrimination Law;
Florida Wage andHourlaws;
Any Floridaorfederal whistleblower laws;
The Internal Revenue Code;
The Rehabilitation Act;
TheConsolidatedOmnibus Budget Reconciliation Act;
The Immigration Reform andControl Act of 1986;
The Americans with Disabilities Act of 1990;
TheAge Discrimination inEmployment Act,includingtheOlderWorkers
Benefit Protection Act;
The Fair Labor Standards Act;
The Equal Pay Act of 1963;
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The Occupational Safety andHealth Act;
The Family and Medical Leave Act of 1993;
The National Labor Relations Act;or
Any other federal,state,orlocalcivilorhumanrightslaworanyother federal,
state,orlocallaw,regulation,orordinance.
The disputes released by PLAINTIFFS also include any and all disputes they have ormay
believe themselves tohave against theCITYin contract orat common law,including,butnot
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,intentional and negligent infliction of
emotional distress,negligent retention and supervision,assault,battery,negligence,
misrepresentation or fraud of any kind,duress,unfair dealing,breach of fiduciary or other duty,
invasion of privacy,defamation,false imprisonment,and interference withcontract and/or
prospective economic advantage.
The reference herein to specific statutory,contract and common law claims isinnoway
intended to limit the disputes released by PLAINTIFFS.PLAINTIFFS intend that the disputes
released by each one herein be construed as broadly as possible to cover any and all disputes
each may have or believe himselfto have against theCITY.In that regard,PLAINTIFFS further
acknowledge that they may later discover facts in addition to or different from those which they
now know or believe tobe true with respect to the subject matter of this Agreement.
PLAINTIFFS agree that any such difference inthe facts shall not affect this Agreement;that
they assume the risk of any such difference in the facts;and that they further agree that this
Agreement shall remain in full force and effect and notbe subject to rescission by reason of any
such difference in the facts.
DURAN STROFACE CITY"
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PLAINTIFFSalsoeach agree andacknowledgethatthisAgreementisalso pursuant to
Section 440.20(1 l)(c)(d)and(e),Florida Statutes,andisintendedtobeacompleteand final
settlement of anyandall workers'compensationbenefitsunderChapter440,Florida Statutes,
including,butnotlimitedto,future medicalbenefits.PLAINTIFFSalsoeach stipulate thatall
accidents,injuries,repetitive traumas,exposures,and occupational diseasesknowntohave
occurredorbeensustained while employed bythe CITY havebeenrevealed.PLAINTIFFS each
agree thatthisAgreementincludesall accidents,occupational diseasesandinjuries sustained
while employed bytheCITY,whether reported or not.Itis PLAINTIFFS'intention to fully,
finally and forever resolveand release anyandall disputes thateachmayhaveorbelievehimself
tohaveagainstthe CITY withrespecttoanyallegedacts occurring beforetheeffective date of
this Agreement,whether those disputes presently are knownor unknown,suspected or
unsuspected.
The CITY alsoherebyknowinglyandvoluntarily releases,waives,and forever
discharges any and all claims,rights,demands,actions or causes of action,of any kind
whatsoever,known or unknown,foreseen or unforeseen,foreseeable or unforeseeable,and any
consequences thereof,which itmay have against PLAINTIFFS,either individually or
collectively,from the beginning of the world until the effective date of this Agreement.The
disputes released by the City include any and all disputes it has or believes itselfto have against
PLAINTIFFS in contract oratcommonlaw,including,butnotlimitedto,breach of oral,written
and/or implied contract,breach of an implied covenant of good faith and fair dealing,wrongful
discharge under any theory,misrepresentation or fraud of any kind,duress,unfair dealing,
breach of fiduciary or other duty,and interference with contract and/or prospective economic
advantage.Thereferencehereintospecific statutory,contract and common lawclaimsisinno
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way intendedto limit thedisputesreleased by the CITY.The CITY intendstoanddoesrelease
anyandallclaimsthatitmayhaveagainstPLAINTIFFS,eitherindividuallyorcollectively.
5.No Future Employment.
PLAINTIFFS agreethat they will not seek employment or reinstatement with the CITY
asafull-time,paid employee of the CITY.
6.No Admission Of Liability Or Wrongdoing.
PLAINTIFFS agreethatnothingcontainedinthis Agreement orotherwiseshall
constituteorbeconstruedasanadmission of anyallegedliabilityorwrongdoingbythe CITY.
Indeed,the CITY deniesthatit engaged inany wrongdoing of anykindwithrespecttoany of the
PLAINTIFFS.
7.Indemnity.
PLAINTIFFS acknowledge thatallcosts and/or attorneys'feesliens,workers'
compensation liens,andallmedicalliensandbills for medical,hospital,ambulance and/or
nursing care,treatment,diagnosis,or examination of PLAINTIFFS arising out of or related to
theclaims asserted in,orthatcouldhavebeen asserted inconnectionwith PLAINTIFFS1 lawsuit,
haveorwillbepaidinfullby PLAINTIFFS out of the proceeds of this Agreement.
PLAINTIFFS agree tothisindemnity provision forthe purpose of inducingthe CITY to
settle Case No.05-13481 CA04 and in consideration for the funds paid asset forth inthis
Agreement.PLAINTIFFS agree to indemnify and holdtheCITY harmless of and from any and
all bills,sums,amounts,debts,liens,demands,claims,promises,damages,judgments,and
executions inlaworin equity,for attorneys'fees and/or costs,medical,hospital,ambulance
and/or nursing care,treatment,diagnosis or examination arising out of or related to Case No.05-
13481 CA04,oranyother allegation thatwasmadeor could havebeenmadeby PLAINTIFFS.
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8.Tax Consequences of Settlement.
PLAINTIFFS understand and agree that should theIRS,oranyothertaxing authority or
other federal,state,or local agency assert,argue,or determine thatanymoney received or paid
pursuant tothisAgreement,thatwasnotsubjecttowithholding and/or deductions,istaxable
wages,income,orbenefits of anykind,PLAINTIFFS willbesolelyand individually responsible
for the payment of anyandall taxes,contributions or withholdings (whether they are allegedly
due from PLAINTIFFS,theCITY,or any combination thereof)including,butnot limited to,any
related attorneys'fees,interest,costs,penalties,orother charges regardless of whetherthe CITY
should have withheld or paid such taxes or made such contributions (including Social Security or
Medicare).PLAINTIFFS will indemnify,reimburse,and holdtheCITY harmless for any and all
taxes,contributions,withholdings,fees,attorneys'fees,interest and/or penalties owedorclaimed
tobeowedbythe CITY onthese amounts and assume anyandall liability for all suchtaxes,
interest,or penalties assessed against the CITY.PLAINTIFFS will also mdemnify CITY for any
and all costs,interest,and attorneys'fees paid or owed bytheCITY as a result of any claim
madebyany federal,state,or local agency for taxes,penalties,costs,interest,fees,or
contributions that allegedly are owing as a result of the amounts paidto PLAINTIFFS under this
Agreement.
9.Encouragement to Consult Attorney and Time for Consideration.
A.Representation bv Legal Counsel.The CITY encouraged PLAINTIFFS to
consult their attorney regarding the terms of this Agreement before signing the Agreement,and
PLAINTIFFS acknowledge that they did,in fact,consult with their attorney regarding the terms
of this Agreement.PLAINTIFFS acknowledge that they have had their attorney review this
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Agreement andthateachone understands thelegal effect of this Agreement and their rightsand
obligations under the Agreement.
B.Time toConsiderSigning Agreement.PLAINTIFFS acknowledge that
they have been given areasonableperiod of time of notlessthan twenty-one (21)days within
which todecide whether tosignthis Agreement.PLAINTIFFS understandandagreethat they
canusealloranypart ofthisperiodtodecide whether tosignthis Agreement.
C.Seven (7)Day Period to Revoke.PLAINTIFFS understand that each one
may revoke this Agreement within seven (7)calendar days after he signs the Agreement.*If
either PLAINTIFF revokes the Agreement,however,the Agreement will be deemed
unenforceable asto the individual who revoked it,will be considered null and void asto that
person,andthe CITY shallberelieved of allobligationsstatedinthis Agreement astothat
person.Uponrevocation of this Agreement by one(1)PLAINTIFF,the Agreement will remain
in fullforceand effect asto the other PLAINTIFF,unless the other PLAINTIFF also revokes
thisAgreement.Tobean effective revocation,anyrevocationmustbeinwriting,executedby
PLAINTIFFS and delivered to James C.Crosland,at the law firm of AKERMAN
SENTERFITT,28th Floor,One Southeast Third Avenue,Miami,Florida 33131-1714,on or
beforetheseventh calendar dayaftertheysignthe Agreement byorbefore 5:00 p.m.(Eastern
Time).Therevocationmustexpresslystate"IherebyrevoketheAgreement."
For purposes of computingthisseven(7)day period,the date PLAINTIFFSsignthe
Agreementshouldnotbe included.Thelastday of the period socomputed shall be
included,unlessitisa Saturday,Sunday,or legal holiday,inwhicheventthe period of
time prescribedrunsuntiltheend of the next day which isnotone of the aforementioned
days.Intermediate Saturdays,Sundays,andlegalholidaysshallbeincludedinthe
computation.
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D.Effective Date.PLAINTIFFS acknowledge thatthis Agreement shallnot
become effective andenforceableuntiltheseven(7)dayrevocationperiodhasexpiredanditis
approved by theCityCommission.The CITY willexecutethe Agreement aftertheseven(7)
day revocation period hasexpiredand provided thattheCityCommission approves the
Agreement
E.Approval by CityCommission.PLAINTIFFSacknowledgethatthis
Agreementis contingent upon approval bytheCity Commission.If theCityCommission rejects
this Agreement,thepartieswillreturntothestatusquo.
10.Governing Law and Interpretation.
This Agreement shallbegoverned by andconstruedin accordance with thelaws of the
State of Florida,and where applicable,federal laws.The language of this Agreement shall be
construed asa whole,according toits fair meaning,and not strictly construed for or against
eitherparty.
11.Severability.
Should any court of competent jurisdiction declare illegal or unenforceable any provision
of this Agreement (which provision cannot be modified tobe enforceable),such provision shall
immediately become null and void,leaving the remainder of this Agreement in full force and
effect.
12.Entire Agreement;Amendment:Signatures.
This Agreement and its attachments set forth the entire agreement between the parties
and supersede any and all prior agreements or understandings between the parties.This
Agreement may not be amended except bya written agreement signed bythe parties or signed by
their respective administrators,trustees,personal representatives,or successors.
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13.Headings.
Section headings areusedinthis Agreement for ease of reference onlyandshallnot
affectthemeaning of anyprovision of this Agreement.
14.Disputes.
Intheeventthatanypartytothis Agreement institutes legal proceedings for breach ofthe
terms of thisAgreement,itisstipulatedandagreedthatsuchaclaimshallbeheardand
determined bythe court,notbya jury.Furthermore,inthe event thatit shall be necessary for
anyPartytothisAgreementtoinstitutelegalactiontoenforceany of thetermsand conditions or
provisions contained herein,orforany breach thereof,the prevailing party shall be entitled to
costs and reasonable attorney'sfeesup through any appeals.
15.Entire Agreement.
PLAINTIFFS acknowledge that they have carefully read and understand this Agreement
andagreethattheCITYhasnotmadeany representations otherthanthose contained herein.
Each Plaintiff also acknowledge that each enters into this Agreement voluntarily,without any
pressure or coercion,and with full knowledge ofits significance,and that this Agreement
constitutesa FULL AND ABSOLUTE SETTLEMENT AND BAR AS TO ANY AND ALL
CLAIMS each had,have,ormayhave against the CITY.
16.Acknowledgement.
THEPARTIESHAVEREAD,UNDERSTOOD,ANDFULLYCONSIDEREDTHIS
AGREEMENT CONSISTING OF TWELVE (12)PAGES ANDONE EXHIBIT ANDARE
MUTUALLY DESIROUSOF ENTERING INTOSUCH AGREEMENT.THETERMSOF
THIS AGREEMENT ARETHE PRODUCT OFMUTUAL NEGOTIATION AND
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COMPROMISE BETWEEN PLAINTIFFS ANDTHE CITY.HAVING ELECTED TO
EXECUTE THIS AGREEMENT,TO FULFILL THE PROMISES SET FORTH HEREIN,AND
TO RECEIVE THEREBY THE BENEFITS SET FORTH ABOVE,PLAINTIFFS FREELY
AND KNOWINGLY,AND AFTER DUE CONSIDERATION,ENTER INTO THIS
AGREEMENT INTENDING TO RELEASE,WAIVE,ANDSETTLEALL CLAIMS THAT
THEY HAVE OR MIGHT NOW HAVE AGAINST THECITY.
Joseph Duran
Date:
Michael Stroface
Date:
Approved By:
Eddy Marban,Esquire
Counsel for Plaintiffs
DURAN STROFACE
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The City of South Miami
By:.
Yvonne McKinley
City Manager
Date:
Approved By:
JamesC.Crosland,Esquire
DeniseM.Heekin,Esquire
Counsel for Defendant
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CITY