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Res No 002-18-15034RESOLUTION NO. 002-18-15034 A Resolution authorizing and instructing the City Attorney to settle the case of Orlando Martinez de Castro versus the City of South Miami, Case Number 13-9342 CA 15 and Appellate Case Number 3D16-2421 and instructing the City Manager to take the necessary steps to comply with the settlement terms and to pay the settlement amount. WHEREAS, the City Manager offered to payout the remainder of Mr. Martinez de Castro's employment agreement and allow him to retire honorably and without the spector of being terminated; and WHEREAS, Mr. Martinez de Castro declined the City Manager's offer, refused to settle his employment disagreement, sued the City and was later terminated by act of the majority of the City Commission, and WHEREAS, a fmal judgment was rendered wherein the Court determined: (1) The City did in fact have the right to terminate Mr. Martinez de Castro, but (2) that Mr. Martinez de Castro was entitled to the remainder of the compensation and benefits under his previous employment agreement; and WHEREAS, the fmal judgment was affirmed by the Third District Court of Appeals without opinion: and WHEREAS, the City has filed a motion for rehearing before the Third District Court of Appeals which is currently pending; and WHEREAS, the only remaining issue, other than the motion for rehearing, is whether the trial court erred in finding that Mr. Martinez de Castro was entitled to attorney fees at the trial court and appellate court level and, if so, the amount ofthose fees; and WHEREAS, a settlement was negotiated by the City in order to limit the fmancial impact to the City's budget, by limiting further court proceedings and attorney expenses, and the terms of the settlement include releasing claims and any supporting evidence that Mr. Martinez de Castro committed numerous unethical acts while employed by the City, WHEREAS, the Mayor and City Commission desires to settle the entire case including trial and appellate attorney fees and costs. NOW THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY COMMISSIONERS OF THE CITY OF SOUTH MIAMI, FLORIDA: Section 1. The City Attorney is hereby authorized and instructed to settle the case for $1,025,000.00, in exchange for a Joint General Release, releasing all of Mr. Martinez de Castro's Page 1 of2 Res. No. 002-18-15034 claims (other than for his other currently filed cases), including but not limited to the amount of his judgment, all pre-and post-judgment interest and all trial and appellate fees and costs. Section 2. The City Manager is instructed to sign a Joint General Release of all claims related to Mr. Martinez de Castro's employment with the City of South Miami, including the City's claims that Mr. Martinez de Castro committed numerous unethical acts while employed by the City, and to take all appropriate steps to be able to pay and to pay the settlement amount within 30 days. Section 3. Severability. If any section clause, sentence, or phrase of this resolution is for any reason held invalid or unconstitutional by a court of competent jurisdiction, the holding shall not affect the validity of the remaining portions of this resolution. Section 4. Effective Date. This resolution shall become effective immediately upon adoption. PASSED AND ADOPTED this ~day of January ,2018. APPROVED: rRl-lf~ MAY R COMMISSION \TOTE: Mayor Stoddard: Vice Mayor Welsh: Commissioner Harris: Commissioner Edmond: Commissioner Liebman: Page 2 of 2 4-1 Yea Yea Yea Yea Nay ,.- SETTLEMENT AGREEMENT AND MUTUAL RELEASE TIllS SETTLEMENT AGREEMENT AND MUTUAL RELEASE (interchangeably refeJ;rW herein as "Agreement" and/or "General Release") is made and entered into as of the __ J~day of January, 2018 by and between ORLANDO MARTINEZ de CASTRO, (hereinafter "Plaintiff'), and the CITY OF SOUTH ~ (hereinafter "Defendant"), interchangeably referred herein individually as a "Party" and collectively as the "Parties". WHEREAS, this Settlement Agreement and Mutual Release is entered into for the purpose of settling any and all claims, controversies and disputes, made or not made, between the aforesaid Parties arising out of, or in any way related to the lawsuit filed on March 13,2013, in the Miami-Dade County Circuit Court, styled ORLANDO MARTINEZ DE CASTRO v. THE CITY OF SOUTH MIAMI. Case No.: 13-09342-CA-15 ("The Lawsuit"), and the corresponding appeal of The Lawsuit to the Third District Court of Appeals for the State of Florida in Case No.: 3D16-2421 (The "Appeal"), and stemming from Plaintiff's employment with the Defendant as well as all other claims, other than those that are pending in other lawsuits filed by Plaintiff as of January 5, 2018. WHEREAS, the Defendant desires to minimize cost to the Ci1y from continued litigation by amicably resolving all existing issues and disputes between the Parties. NOW, THEREFORE, in order to amicably resolve all eXlstmg issues and potential future" issues between the Parties, they have agreed to the terms and conditions contained in this document. 1. Consideration. a. In consideration for Plaintiff taking no further action in The Lawsuit or The Appeal, with the exception of dismissal of same, or any future action in any lawsuit arising from the same facts and occurrences, and releasing any and all other claims that Plaintiff may have against the Defendant as of January 5,2018, other than for those set forth on or before January 5, 2018 in other pending lawsuits, and in consideration for Defendant withdrawing its appellate motions for rehearing and agreeing to pay Plaintiff, by check, the sum of $1,025,000.00 (ONE MILLION TWENTY-FIVE THOUSAND UNITED STATES DOLLARS WITH NO CENTS) (the "settlement check") to be tendered no later than February 3, 2018, and in accordance with subparagraph "b." below, the Defendant and Plaintiff agree to settle their differences and release each other from this and certain other claims as described herein below "and to execute this Settlement Agreement and Mutual Release; b. Payment of the foregoing consideration shall be made by check issued by Defendant and payable to the order of "FRANQUI TOTTEN, LLP Trust Account" It shall be held for the use and benefit of the Plaintiff as well as the use and benefit of Plaintiff's trial and appellate attorneys and to resolve their claims to reimbursement for legal services rendered-and costs incurred in The Lawsuit and The Appeal. 2. No Further Action. The parties represent that no action has been taken by either of them against the other since January 5, 2018 and that no further action shall be taken by either party against the other for any claims that may have existed on or before January 5, "2018. 3. General Release of Claims. a. The Parties knowingly and voluntarily release and forever discharge each other, as well as each other's current and fonner insurers, attorneys, accountants, and agents, both individually and in their business capacities, and their employee benefit plans and programs and their administrators and fiduciaries, and their current and fonner employees, officers, directors, and agents thereof (hereafter collectively referred to as "Releasees") of and from any and all claims that Parties have or may have, known or unknown, at law or in equity, from the beginning of the world until the date of execution of this Settlement Agreement and General Release by Releasors, including those that could have been alleged and/or stem from the facts that arose in the case of Orlando Martinez de Castro v. City of South Miami. Case No.: 13-09342-CA-15 which include, but which are not limited to, any alleged violation of: unpaid wages under F.S. 448.08, breach of contract for the "Employment Agreement", Plaintiff's attorneys' fees and costs, and any and all claims and/or allegations of the unethical conduct of Plaintiff while Plaintiff was employed with Defendant, including but not limited to any and all ethical violations described in COE Complaint Number C12-31 and/or Philip K. Stoddard's February 14, 2013 and February 25, 2013 sworn complaints of alleged violations of the City of South Miami's Code of Ethics Ordinance, which Plaintiff vehemently denies. The afore-mentioned notwithstanding the Parties acknowledge, understand and agree that the claims released herein do NOT include those previously made in the pending cases of: Orlando Martinez de Castro and Deana Martinez de Castro v Phillip K. Stoddard, filed in the 11th Judicial Circuit in and for Miami-Dade County, Case NO.: 13-18246-CA-08; and/or Orlando Martinez de Castro and Deana Martinez de Castro v the City of South Miami and Robert Welsh, filed in the 11th Judicial Circuit in and for Miami-Dade County, Case NO.: 14-65956- CA-13. b. The Parties agree that upon delivery of the settlement check to the offices of FRANQUI TOTTEN, LLP, located at Brickell City Tower, 80 S.W. 8th Street, Suite 2000, Miami, FL 33130, or upon the settlement check being picked up from the City of South Miami, which ever should occur first, it shall be deposited into the FRANQUI TOTTEN, LLP trust account within two business day of receipt and upon the settlement check clearing Plaintiff's coUnsel's Trust Account, all pending motions filed in The Lawsuit and The Appeal are null and void and of no further effect, including, without limitation, Plaintiff's Verified Motion to Tax Fees and Costs filed in the Circuit Court, the motion for appellate fees and any motion for appellate costs, and Defendant's Motion for Rehearing, Motion for Rehearing on Attorneys' Fees and Amended Motions for Rehearing filed in the Appellate Court. In the event that the settlement check is not deposited within two business day of its delivery, then within 15 days of delivery of the settlement check, all pending motions filed in The Lawsuit and The Appeal shall be null and void and of no further effect, including, without limitation, Plaintiff's Verified Motion to Tax Fees and Costs filed in the Circuit Court, the motion for appellate fees and any motion for appellate costs, and Defendant's Motion for Rehearing, Motion for Rehearing on Attorneys' Fees and Amended Motions for Rehearing filed in the Appellate Court c. Within 5 business days of the settlement check clearing Plaintiff's Trust Account, the Plaintiff shall file with the Circuit Court a Stipulation for Dismissal with Prejudice and a proposed Order on same and Defendant shall file a dismissal in the Appellate Court action, withdrawing any pending motions and/or claims to attorney fees and costs. The 5 business days shall commence when a written notice is delivered to the City Attorney by -2- email addressed to tpepe@southmiamifl.gov advising him that the check has cleared the trust account of Plaintiff's attorney .. 4. Governing Law and Interpretation; Litigation Forum. This General Release shall be governed, interpreted, and conformed in accordance with the laws of the State of Florida without regard to its conflict of laws provision. Should any provision of this General Release be declared illegal or unenforceable by any court of competent jurisdiction and cannot be modified in order to be enforceable, excluding the general release language, such provision shall immediately become null and void, leaving the remainder of this Settlement Agreement and Mutual Release in full force and effect. Any litigation arising from or in any way related to or to enforce or declare rights or obligations under this General Release shall be brought exclusively and mandatorily only in the courts of Miami-Dade County, Florida. 5. Amendment. This Settlement Agreement and General Release may not be modified, altered, or changed except upon express written consent of the Parties wherein specific reference is made to this Agreement. 6. Entire Agreement. This Settlement Agreement and Mutual Release sets forth all of the terms and conditions agreed to by the Parties , and fully supersedes any prior agreements or understandings between them, written or oral. The Parties to this Agreement acknowledge that they have not relied on any oral or written representations, promises, or agreements of any kind made to them by anyone in connection with their decision to accept and execute this Settlement Agreement and General Release, except for those set forth in this Settlement Agreement and Mutual Release. 7. Counterparts. This Settlement Agreement and General Release may be signed in counterparts that together shall be deemed to comprise a single and complete Settlement Agreement and General Release, and the Parties agree that a facsimile, photocopy, or scanned image of this Settlement Agreement and General Release, including, without limitation, any signature(s) or other marks thereon, shall be admissible in any judicial, administrative, or other proceeding related to this Settlement Agreement and General Release with the same weight and binding effect as an original. 8. Effective Date. This Agreement shall be effective as of January 5, 2018. [SIGNATURE PAGES FOLLOW} -3- The Plaintiff/Appellee, knowingly and voluntarily signs this Settlement Agreement and Mutual Release, intending to be bound thereby, as of the date(s) set forth below: Date: --=-+-J'--=~r-=~....:.&.O-' 2018, The Defendant! Appellant, knowingly and voluntarily sign this General Release, intending to be bound thereby, as of the date( s) set forth below: ATTESTED: CITY OF SOUTH MIAMI AGER STEVEN ALEXANDER, Date: ) . 2(,. Iv ,2018 nunc pro tunc January 5, 2018 and execution thereof: -4- ... , ~ ..