Res. No. 101-00-10994RESOLUTION NO.101-00-10994
A RESOLUTION OF THE MAYOR AND CITY COMMISSION
OFTHECITYOFSOUTHMIAMI,FLORIDA,RELATING TO
CLAIMS;APPROVING A SETTLEMENT AGREEMENT IN THE
CASEOF HERNANDEZ v.CITYOFSOUTH MIAMI;
AUTHORIZING THE CITY MANAGER TO EXECUTE THE
AGREEMENT;DIRECTING PERFORMANCE OF CERTAIN
REQUIREMENTS UNDERTHE AGREEMENT;PROVIDING
AN EFFECTIVE DATE.
WHEREAS,theMayorandCityCommission of theCity of SouthMiami
desire to settle a pending lawsuit styled Rafael P.Hernandez,Jr.v.City of South
Miami,Case no.97-20583 CA 11 (Fla.11th Cir.Ct.,1997);and,
WHEREAS,theCityAttorneyadvisesthatitisinthebestinterest of the
Citytosettlethepending action,the settlement amountis $110,000.00,andthe
agreement,entitled "Settlement andRelease Agreement,"whichisattachedtothis
resolution,is legally sufficient informandcontent.
NOW THEREFORE BEIT RESOLVED BY THE MAYOR AND CITY
COMMISSIONOFTHECITYOFSOUTHMIAMI,FLORIDA;
Section1.Thesettlementagreement,entitled "Settlement andRelease
Agreement",whichis attached to this resolution,is approved.TheCity Manager
is authorized toexecutethe agreement andto implement any requirements that
require actionbytheCity.Acopyofthis resolution andthesettlement agreement
willbe placed inthe personnel record of Mr.Hernandez.
Section 2.This resolution shall takeeffect immediately upon approval.
PASSED AND ADOPTED this 2nd day of May,2000.
ATTEST:APPROVED:
CITY CLERK (/MAYOR
Additionsshownby underlining anddeletionsshownby overstriking.
READ AND APPROVED AS TO FORM:
CIIY^TTORNEY7
WDell_6100\Documents\City of South Miami\0022-001\3297.doc
COMMISSION VOTE:5-0
Mayor Robaina:Yea
ViceMayor Feliu:Yea
Commissioner Wisconfte:Yea
Commissioner Bethel:Yea
Commissioner Russell:Yea
Page 2 of 2
Resolution No.101-00-10994
CITY OF SOUTH MIAMI
INTER-OFFICE MEMORANDUM
To:Mayor and City Comm'n.
From:Earl G.Gallop ^y&£
Date:April 26,2000 ^»
Re:Resolutionapproving settlement
Rafael P.Hernandez,Jr.v.City of
South Miami,Case no.97-20583
CAll(Fla.11th Cir.Ct.,1997)
Subject:Aresolutionrelatingto claims;approving a settlement with former Chief
Hernandez.
Discussion:Former police chief Ralph Hernandez was fired by former city manager Dennis
Whitt.Hernandez suedthecityin state circuit courtfor damages for violation ofthestate
whistle blower act and breach of an oral contract to give him a due process hearing ina
termination proceeding.On the due process claim,the law is clear that a former city
manager (Mr.Eddie Cox)does not have the authority to grant an at-will employee due
processrights.I believe thatthewhistleblowerclaimisdefective because Hernandez made
only generalized statementsabout Whitt's malfeasance.However,thelawisnotwell-
developed regarding the degree of specificity that an employee must articulate the wrongful
acts ofa superior and the harm those acts may cause.As the court denied the city's motion
for a summary judgment,the matter will be tried toa jury.I expect that ajury might return
a verdict intherangeof $100,000 to $300,000,as compensation for lost wages,benefits and
attorneys'fees and costs.While we might wina reversal on appeal,there isa substantial
possibilitythata verdict willbeupheld.
In negotiations,Mr.Hernandez agreed to accept $110,000 as full and complete settlement
ofall claims,including his attorneys'fees.Although the whistle blowerclaimisnotcovered
by self-insurance,the Florida League of Cities has agreed to pay one-half of that amount,
$55,000.Mr.Scurr and Chief Watson have reviewed and approved the settlement agreement.
Recommendation:Approvethesettlementagreementresolution.
SETTLEMENT AND RELEASE AGREEMENT
ThisSettlementandReleaseAgreementis entered intobetween Plaintiff,RAFAEL P.
HERNANDEZ,JR.(hereinafterreferred toas "HERNANDEZ"),andDefendant,CITY OFSOUTH
MIAMI,FLORIDA (hereinafter referred toasthe "CITY").HERNANDEZ andthe CITY shall
collectivelybe referred toasthe"PARTIES").
WHEREAS,HERNANDEZ wasemployed by the CITY asthe Chief of Police.
WHEREAS,HERNANDEZhas filed alawsuit against the CITY intheCircuitCourt ofthe
Eleventh Judicial Circuit in and for Dade County,Florida.The action has been assigned Case No.
97-20583 CA 11 (hereinafterthe"CivilAction").
WHEREAS,theCITY denies the allegations made against itbyHERNANDEZintheCivil
Action.
WHEREAS,the PARTIES,in an amicable fashion,desire to avoid incurring further costs
of litigation and are desirous of settling all existing disputes and claims between them in conjunction
with HERNANDEZ'S employment with and/or termination from the CITY including,butnot limited
to,HERNANDEZ'S claims againstthe CITY inthe instant lawsuit.
WHEREAS,thePARTIEShave reached a full and final compromise andsettlementof all
matters,causes of action,claims and contentions between them.
NOW,THEREFORE,in consideration of the mutual covenants and promises herein
contained and for other good and valuable consideration,itis hereby agreed by and between the
PARTIES as follows:
1.TheCITY denies the allegations made against itby HERNANDEZ inthe Civil
Action.This Agreement shall not in any way be construed as an admission by the CITY of any
unlawfulconductor wrongdoing whatsoeveragainst HERNANDEZ,oranyotherperson,orasan
admission bythe CITY of any violation ofany order,law,statute,duty,contract,orany act of
discrimination,whatsoever,against HERNANDEZoranyotherperson.
2.ThePARTIES hereby agree to execute whatever documents are reasonably required
to facilitate or effectuate this Agreement.The PARTIES agree that theywill take all necessary
actions and execute,serve,and file all necessary documents and pleadings to dismiss Civil Action
No.97-20583 CA 11,with prejudice,within five (5)working days of theCITY's payment ofthe
sum described below.
3.HERNANDEZ hereby unconditionally and irrevocably releases and forever
discharges the CITY,and all current or former City Commissions,its individual members,mayors,
administrators,employees,agents,servants,fiduciaries,orofficers oftheCITY,and their successors
and assigns,of and from,and agrees not to sue and not to assert against them any causes of action,
claims,demands,whatsoever,known or unknown,at law,in equity,or before any agency or
commission of local,state,and federal governments,arising,alleged to have arisen,or which might
have been alleged to have arisen,or which may arise under any law (whether or not alleged in the
Civil Action),including,but not limited to,federal,state and/or municipal laws such as 42 U.S.C.
§1983,Title VII,the Age,Discrimination and Employment Act (ADEA);Chapter 760,Florida
Statutes;statutes and laws of contract or torts,including without limitation,claims for wrongful
discharge,defamation,violation of civil and/or constitutional rights,negligent or intentional
infliction ofemotional distress and pension,retirement or deferred compensation benefits (other than
as set forth herein)that HERNANDEZ,on behalf of himself and on behalf of persons similarly
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situated,ever had,now has,or which has heirs,executors,administrators,or assigns,or any ofthem,
hereafter can,shall or may have for any reason or cause whatsoever,to the date ofthis Agreement.
4.IN FURTHER CONSIDERATION ofthe agreements above,the CITY agrees to pay
the total sum of ONE HUNDRED TEN THOUSAND AND NO/100 ($110,000.00)DOLLARS.
In the event itis ever determined that any portion of the settlement amount constitutes taxable
income,HERNANDEZ agrees that he is liable and fully responsible for payment ofany and all taxes
normally and customarily paid bya like person;including,any penalties,interest or other costs
attributable to the late payment of such taxes.HERNANDEZ further agrees to indemnify the CITY
in the event any tax liability is later determined to exist,however,this indemnity does not apply to
any monies the CITY customarily would have paid.
5.IN FURTHER CONSIDERATION,the CITY agrees to take any and all steps
necessary to assist HERNANDEZ in the release of his deferred compensation funds accumulated
while in the employ of the CITY.In the event ofany tax liability incurred as aresult of any actions
taken by HERNANDEZ with those deferred compensation funds,HERNANDEZ agrees to hold the
CITY harmless andindemnifythe CITY from same.
6.AS ADDITIONAL CONSIDERATION,the CITY agrees to amend HERNANDEZ'S
Affidavit of Separation with the Criminal Justice Standards and Training Commission,a division
ofthe Florida Department of Law Enforcement,in amanner agreeable between the PARTIES.The
PARTIES agree to use the latest form now in use by the Florida Department of Law Enforcement.
7.Nothing herein is designed to preclude any party from enforcing the terms of this
Agreement,the provisions ofwhich shall be governed and construed in accordance with Florida law.
In the event oflegal action between the PARTIES hereto,their successors or assigns,arising out of
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orin connection with this Agreement,theprevailingpartyinanysuchactionshallbeentitledto
receivereasonable attorney's feesandcostsandappellateattorney'sfeesandcostsincurredin
connectiontherewith.Thevenue of anycause of action,claimor complaint arisingout of this
Agreement shallbein Miami-Dade County,Florida.
8.HERNANDEZ representsandagreesthathehas voluntarily and knowingly entered
intothisAgreement,thathehashadanopportunitytoreviewthisdocumentwithanyone of his
choosing,includinghis attorney,andthatthisAgreement encompasses thefullandcomplete
agreement between the PARTIES.
9.Shouldanyprovision of this Agreement bedeclaredor determined by anycourt of
competentjurisdictiontobeillegal,invalid,or unenforceable,the legality,validityandenforceability
of the remaining parts,termsor provisions shall notbeaffectedthereby,andsaid illegal,
unenforceableorinvalid part,termorprovisionshallbedeemednottobepart of thisAgreement.
10.This Agreement may beexecutedinseveralcounterparts,each of which shallbe
deemed anoriginal.
11.ThisAgreementmaynotbe amended ormodifiedinanyrespectwhatsoever,except
viawritingdulyexecutedbythePARTIES,andthePARTIESeach agree thattheyshallmakeno
claimsatanytimethatthisAgreementhasbeenorallymodifiedoramended.
12.ThePARTIEShereto represent and acknowledge thatinexecutingthisAgreement,
theydonotrelyandhavenotreliedonany representation or statement madebyany ofthePARTIES
orbyany of the PARTIES'agents,representatives,or attorneys with regard tothesubject matter,
basis,oreffect of thisAgreementorotherwiseotherthanthosespecificallystatedinthiswritten
Agreement.
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13.This Agreement shall be binding uponthe PARTIES hereto,andupontheir heirs,
administrators,representatives,executors,successors and assigns,andshallinuretothebenefitof
said PARTIES andeach of them and totheir heirs,administrators,representatives,executors,
successors and assigns.
WITNESSES:
RAFAEL P.HERNANDEZ,JR.
Date:
p
THEXITY OF SOUTH MIAMI
Date:rfj:g<2.00
JOHNSON,ANSELMO,MURDOCH,
BURKE &GEORGE,P.A.
Attorneys for Defendant
790 East Broward Boulevard
Suite 400
Fort Lauderdale,FL 33301
(954)463-0100 (Telephone)
(954)463-2444 (Facsimile)
By:.
RICHARD H.McDUFF
Florida Bar No.724671
Hp\LIBRARY\FLC\Hernandez-Rafael\Settlement\SeKlement.Release.Agreementwpd
-5-
MIAMI DAILY BUSINESS REVIEW
PublishedDailyexcept Saturday.Sunday and
Legal Holidays
Miami,Miami-Dade County,Florida.
STATE OF FLORIDA
COUNTY OF MIAMI-DADE:
Before the undersigned authority personally appeared
Sookie Williams,who on oath says that she is the Vice
President ofLegal Advertising of the MiamiDaily Business
Review f/k/a Miami Review,a daily (except Saturday,Sunday
and Legal Holidays)newspaper,published atMiamiin Miami-
Oade County,Florida;that the attached copy of advertise
ment,being a Legal Advertisement of Notice in the matter of
CITY OF SOUTH MIAMI
PUBLIC HEARING-5/2/00
RESOLUTION RE:CLAIMS,
APPROVING A SETTLEMENT
AGREEMENT,ETC.
inthe ??????????Court,
was published in said newspaper in the issues ofwaspublishedinsaidnews
Apr 21,2000
Affiant further says that the said Miami Daily Business
Review isa newspaper published at Miami in said Miami-
Dade County,Florida,and that the said newspaper has
heretofore been continuously published in said Miami-Dade
County,Florida,each day (except Saturday,Sunday and
Legal Holidays)and has been entered as second class mail
matter at the post office in Miami in said Miami-Dade
County,Florida,fora period of one year next preceding the
first publication of the attached copy of advertisement;and
affiant further says that she has neither paid nor promised
any person,firm or corporation any discount,rebate,com-
missionyft refundforthepurposeofsecuringthis advertise
ment fgCpubiicatioa inthesaid newspaper.
e me this
2000
(SEAL)
Sookie Williams personally %
*
r <j?MY OOMMI88ION EXPIRES
CfrflO JUNE
•fFIOIAL NOTARY St AL
JANETT LLER€NA
C6MMI8810N NUMBER
CC566004
23,2000
CITY OF SOUTH MIAMI
NOTICE OF PUBLIC HEARINGS
NOTICEISHEREBYgiventhattheCity Commission oftheCityof
South Miami,Florida will conduct Public Hearings during its regular City
Commission meeting on Tuesday,May 2,2000 beginning at 7:30 p.m.,in
theCity Commission Chambers,6130 Sunset Drive,to consider.-—
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 HERNANDEZ V.CITY OF SOUTH MIAMI;AUTHOR
IZING THE CITY MANAGER TO EXECUTE THE AGREEMENT;
DIRECTING PERFORMANCE OF CERTAIN REQUIREMENTS
UNDER THE AGREEMENT;PROVIDING AN EFFECTIVE
DATE.
A RESOLUTION OF THE MAYOR AND CITY COMMISSION
OF THE CITY OF SOUTH MIAMI,FLORIDA,RELATING TO A
CLAIMS;APPROVING A SETTLEMENT AGREEMENT IN THE
CASE OF RATNER V.CITY OF SOUTH MIAMI;AUTHORIZING
THE CITY MANAGER TO EXECUTE THE AGREEMENT;DI
RECTING PERFORMANCE OF CERTAIN REQUIREMENTS
UNDER THE AGREEMENT;PROVIDING AN EFFECTIVE
DATE.
Inquiries concerning thisitem should be directed to the City Manager's
Office at:663-6338.
ALL interested parties are invited to attend and will be heard.
Ronetta Taylor,CMC
CityClerk
Cityof South Miami
Pursuant toFlorida Statutes 286.0105,theCity hereby advises thepub
licthatifa person decides to appeal any decision made bythisBoard,
Agency or Commission with respect to any matter considered atits meet
ingorhearing,heorshe will needarecordoftheproceedings,andthatfor
such purpose,affected person may need to ensure that a verbatim record
ofthe proceedings is made which record includes the testimony and evi
dence upon which the appeal istobe based.
4/21 00-3-81/45996M