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08-04-09 Item 17• • • CITY OF SOUTH MIAMI INTER - OFFICE MEMORANDUM To: The Honorable Mayor and City Commission From: Luis R. Figueredo, Office of City Attorney Date: July 2, 2009 r Re: Authorization of Legal Fees for Commissioner Valerie Newman REQUEST: A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA, AUTHORIZING THE PAYMENT OF LEGAL FEES ASSOCIATED WITH THE DEFENSE OF A COMPLAINT AGAINST A CITY COMISSIONER ALLEGING VIOLATIONS OF THE MUNICIPAL CHARTER, MUNICIPAL ETHICAL STANDARDS AND GUIDELINES, AND THE PROVISIONS OF THE CITY MANAGER'S CONTRACT, PROVIDING AN EFFECTIVE DATE. BACKGROUND AND ANALYSIS: On June 10, 2009, the City of South Miami was served with a complaint entitled: W. Ajibola Balogun v. the City of South Miami and Valerie Newman, under case no. 09 -43364 CA 25 (Fla. I I' Cir. Ct. 2009). The complaint specifically named Commissioner Newman as a defendant and alleges that the Commissioner, in her official capacity as a Commissioner, violated the City Charter and Municipal Ethical Standards and Guidelines. The City Commission passed Ordinance 15 -06 -1883 on July 18, 2006, for purposes of defraying legal fees and costs associated with defending legal claims against elected officials when acting in their official capacity. Attached to this Memorandum are copies of Ordinance 15 -06 -1883, the Complaint and Commissioner Newman's written request. Ordinance 15 -06 -1883 provides for the legal defense of elected officials charged with violations of the City's ethical standards. Several of the allegations contained in the subject complaint fall within the issues intended to be covered by Ordinance 15 -06 -1883 Accordingly, I am recommending that the City Commission approve the expenditures associated with the legal defense of Commissioner Newman in the above referenced action. RECOMMENDATION: Approval. An, Additions shown by underlining and deletions shown by ever . 1 RESOLUTION NO. • 2 3 4 5 A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF 6 THE CITY OF SOUTH MIAMI, FLORIDA, AUTHORIZING THE 7 PAYMENT OF LEGAL FEES ASSOCIATED WITH THE DEFENSE 8 OF A COMPLAINT FILED AGAINST THE CITY OF SOUTH MIAMI 9 AND COMMISSIONER NEWMAN, PROVIDING AN EFFECTIVE 10 DATE. 11 12 13 14 WHEREAS, the Mayor and the City Commission of the City of South Miami 15 passed Ordinance 15 -06 -1883 establishing a process for providing for legal fees 16 associated with the defense of allegations filed against elected officials for alleged 17 violations of State, County and Municipal ethical standards and guidelines; and, 18 19 WHEREAS, a Complaint was filed and served against the City of South Miami 20 and Commissioner Newman, in her official capacity as a City Commissioner, which 21 alleges violations of the City Charter and Municipal Standard and Ethical Guidelines; 22 and, 23 • 24 WHEREAS, Commissioner Newman has complied with the procedures 25 enumerated in the City's Ordinance by submitting a written request to the City Attorney 26 for the provision of a legal defense; and, 27 28 WHEREAS, Commissioner Newman's written request includes the name, 29 address, resume and hourly rate of her counsel as required by Section 8A -6(c); and, 30 31 WHEREAS, the City Attorney has opined, that in light of the allegations 32 contained in the complaint, that Commissioner Newman should be offered the 33 opportunity to have separate counsel and is therefore recommending approval of 34 Commissioner Newman's request. 35 36 37 NOW THEREFORE BE IT RESOLVED BY THE MAYOR AND CITY 38 COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA; 39 40 Section 1. City funds may be used to pay for the legal defense as 41 provided for in section 8A -6(d) for Commissioner Newman in the case styled: W. Ai ibola 42 Balogun v City of South Miami and Valerie Newman, 09 -43364 CA 25 (Fla. 11ffi Cir. 43 Ct.2009). 44 45 An, Additions shown by underlining and deletions shown by ever . I . 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 • • Section 2. This resolution shall take effect immediately upon passage. PASSED AND ADOPTED this ATTEST: CITY CLERK READ AND APPROVED AS TO FORM: Luis R. Figueredo, Office of City Attorney day of July, 2009. APPROVED: MAYOR COMMISSION VOTE: Mayor Feliu: Vice Mayor Beasley Commissioner Palmer: Commissioner Newman: Commissioner Sellars: Page 2 of 2 • ORDINANCE NO. 15 -06 -1883 AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA RELATING '. TO ETHICS, AMENDING CHAPTER 8A OF THE CODE OF ORDINANCES OF THE CITY OF SOUTH MIAMI, ENTITLED "CODE OF ETHICS "; PROVIDING FOR THE DEFENSE OF ELECTED OFFICIALS; DEFINITIONS; PROVISIONS' FOR DEFENSE OF ELECTED OFFICIALS; REQUEST PROCESS AND APPROVAL OF DEFENSE; AUTHORIZATION; RESERVATION OF RIGHTS AND IMMUNITIES; APPLICABILITY; PROVISIONS WHEN COMPLAINT OR ALLEGATIONS ARE FOUND TO BE MALICIOUS, FRIVOLOUS OR GROUNDLESS; PROVIDING FOR REPEAL, SEVERABILITY; \ PROVIDING FOR INCLUSION IN THE CODE; PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the Mayor and City Coin'mission of the City of South Miami find that in order to encourage qualified persons to serve the City of South Miami, it is • necessary to protect such persons from certain legal expenses incurred in protecting themselves from allegations of violating State, County, or Municipal ethical standards and guidelines, while acting in the course and scope of their service to the City of South Miami; and, WHEREAS, at chapter 8A, the city adopted its Code of Ethics, governing the .3 ethical standards and guidelines for elected and employed city public officials; and, WHEREAS, the city reserved section 8A -6 and seeks to now create a new section 8A -6, which section shall provide the procedures, definitions and details on approving the defense of the city's elected public officials; and, WHEREAS, the Mayor and City Commission of the City of South Miami find that the adoption of this Ordinance is in the best interest of the City of South Miami; and • Ord. No. 15 -06 -1883 • NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA THAT: Section 1. Recitals Adopted. That all of the above stated recitals are hereby adopted, confirmed and incorporated by reference into this ordinance. Section 2. Chapter 8A of the City Code is amended as follows: SA -6 Dived. Defense of Official in Ethics Matters. (a) Definitions When used in this section the following_ words shall mean as indicated: 1. The Term "Qficial" shall mean soled the following the Mayor and all members of the City Commission.. 2. The term "City Fund" shall mean only funds appropriated for expenditure by the City Commission. • 3. The Term "Counsel" shall mean the attorney independently selected by the Official for the purpose of defending the Official in actions or proceedings in accordance with this section. Counsel shall be licensed to practice law in Florida, experienced in ethics defense and otherwise adequately qualified for the purpose of such representation. 4. The term "Legal Expenses" shall mean reasonable attorney's fees and necessary defense expenses directly incurred in defending an Official in accordance with this section. 5. The term "Legal Defense" shall mean the services provided by Counsel in defending an Official accordance with this section. 6. The term "Reimbursable Costs" shall mean approved necessary incidental expenses including but not limited to travel expenses directly incurred by the Official in association with the defense of actions or proceedings in accordance with this section. (b) Defenses of Q acials. Upon the request of the City Official (the "Official ") the City may, in its discretion, provide for the Legal Defense of any action or • Page 2 of 7 Additions shown by underlining and deletions shown by eve- Ord. No_ 15 -06 -1883 proceeding brought i against such Official for acts or omissions arising out of and in the course and scope of the Official's function when such Official is charged with a violation of any provision of the Code of Ethics for Public Officers and Employees Part III Chapter 112, Florida Statutes Section 2 -11.1 Miami -Dade County Code or chapter 8A-1-through 5 of the City's ethics ordinances. The provision of Legal Defense is limited to the payment of Legal Expenses to Counsel and the payment of approved Reimbursable Costs to the Official incurred for the purpose of defending actions or proceedings in accordance with the provisions of this section. This section shall not appl try action brought or initiated by the City against an official. (c) Request for Approval A written request for the provision of Legal Defense (the "Request ") shall be submitted by the Official and reviewed in accordance with the following procedure: 1. A Request shall be submitted to and reviewed by the City Manager. 2. A Request shall be submitted after the Official is served with a complaint, notice charge, summons process or other initiating pleading, • 3. A Request shall include the name, address resume and hourly rate of Counsel and a copy of the complaint notice charge summons, process or other initiating_ pleading, 4. The Citv Manager shall recommend approval or denial the Request in writing within ten (10) days after receipt of such Request. The City Manager's recommendation is subject to the City _Attorney's concurrence that said Request is consistent with the requirements of this section. 5. The City Commission shall consider and vote on the recommendation of the Cijy Manager and City Attorney to fund Legal Expenses and Costs as provided for under Section 8A- 6(e)(1). (d) Authorization The City Manager is hereby authorized to expend City Funds upon the review and approval of a Request for the payment of Legal Expenses and Reimbursable Costs in accordance with subsection 8A -6(b). The authorization to expend City Funds shall not extend to any appeal or other judicial review without additional authorization of the City Commission. The expenditure of City Funds shall be paid from a specific City account established in the City budget for the purposes of this section or from other funds designated for Mayor Page 3 of 7 Additions shown by underlining and deletions shown by ever-str-iking. Ord. No. 15 -06 -1883 • or Commission use No funds of the City, other than City Funds as defined in subsection 8A -6(a), shall be used for the Legal Defense of an Official. The expenditure of City Funds for the payment of Legal Expenses and Reimbursable Costs shall be subject to the following: (1) Counsel of the Official shall on a monthly basis submit all current bills for Legal Expenses to the City's finance department in a format improved by the City Attorney and Finance Director. The Official shall on a monthly basis submit all current bills for Reimbursable Costs to the City's finance department in a format approved by the City Attorney and Finance Director; (2) The City Manager and City Attorney_ shall review and approve all submitted bills prior to the pa my ent by the City_ (3) Upon approval of submitted bills the City Manager shall provide for direct payment to Counsel for Legal Expenses and to the Official for Reimbursable Costs. Payment shall be made on a monthly basis durina the pendency of the action or proceeding pursuant to Section 218.70, Florida Statutes, et. seq. • (4) The City Manaaer shall on a monthly basis provide a copy of all approved bills to the City Clerk for filing and retention as a public record and for public inspection, subject to an applicable exemption. (e) Reservations oughts and immunities. 1. The provision of the Legal Defense of an Official as provided in subsection 8A -6(b) including, those acts for which the defense may be provided and the extent of City funds which may be expended, shall be solely within the discretion of City Commission. 2. The City Commission may deny or revoke approval of the Request if they determine that the request is baond the scope of this section, the applicable ethics ordinance or inconsistent with the purposes_ of this section• 3. The City Commission reserves the right to deny the Request when the Official has failed to select qualified Counsel, or when the proposed fee schedule is deemed unreasonable; • Page 4 of 7 Additions shown by underlining and deletions shown by evef Ord. No. 15 -06 -1883 • 4. The City Commission reserve the right to revoke approval of the Request when the Official fails to cooperate in the defense of such action or proceeding; 5. The Official shall reimburse the City for any and all City funds expended for payment of Legal Expenses and Reimbursable Costs when it is determined that the alleged act or omission was taken outside the course or scope of the duties of the Official or when the Official' was adjudicated guilty of the alleged violation. The City reserves unto itself the right to seek reimbursement and/or recovery from the Official of the City Funds expended for payment of Legal Expenses and Reimbursable Costs in accordance with this section when it is determined that the alleized act or omission was taken outside the course or scope of the duties .of the Official, or where such Official was adjudicated guilty of the alleged violation; 6. Nothing in this section shall authorize the City Commission to provide for the Legal Defense of an Official where the alleged act or omission was taken outside the course or scope of the duties of the Official, or where the Official has acted in bad faith, with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights safety or property; 7. Nothing in this section shall authorize the City Commission to provide for the Legal Defense of an Official where it is alleged that said Official failed to comply with applicable financial and gift disclosure requirements mandated by Chapter 112, Florida Statutes, Section 2 -11 1 Miami -Dade County Code or the City's ethics code concerning financial and gift disclosure; 8. Nothing in this section shall be construed as a waiver by the City or M Official of any claim of immunity, including sovereign immunity applicable to any action; 9. Any Official who submits a Request and is subsequently provided a Legal Defense at the expense of the City in accordance with this section shall be prohibited from seeking further remuneration from the City for any expenses incurred by said Official during or resulting from the defense of any action or proceeding contemplated by this section, 10. Where an Official fails to avail him/herself of the provisions of this section and no Legal Defense was provided at the expense of the • Page 5 of 7 Additions shown by underlining and deletions shown by eVer-StFikiflg. Ord. No. 15 -06 -1883 • City, nothing herein shall prohibit such Official from seeking reimbursement from the city for legal expenses incurred in the successful defense of a violation or violating of any provision of the Code of Ethics for Public Officers and Employees Pat III, Chapter 112 Florida Statutes Section 2-11.1 Miami -Dade County Code, or chapter 8A -1 through 5 of the Cites ethics code where said Official was acting in the course and scone of the Official's function, 'and said Official is subsequently acquitted or the charge or charges against said Official are dismissed. (� ,plicability The provisions of this section shall apply to all actions and proceeding pending at the time of or instituted after the effective date of this section As used herein, an action shall be construed to be pending where the action has not been tried or if tried where the judgment has not become final by reason of the completion of any appellate proceedings; Malicious Frivolous or Groundless Allegations. In accordance with Section 112 317() Fla Stat or Section 2- 1074(t) Miami -Dade County Code, where it is determined that the complaining party filed a frivolous or groundless complaint. or filed a complaint with malicious intent.to iniure the reputation of • the Official by filing the complaint with knowledge that the complaint contains one or more false allegations or with reckless disregard for whether the complaint contains false allegations of fact material to a violation, the City may seek recovery of Legal Expenses and Reimbursable Costs incurred by the City from the complaining_ party in the name of the Official or as subrogee of the official. Section 3. Severability. If any word, clause, phrase, sentence, paragraph or section of this ordinance is held to be invalid by a court of competent jurisdiction, such declaration of invalidity shall not affect any other word, clause, phrase, sentence, paragraph or section of this ordinance. Section 4. Codification. This ordinance shall be codified and included in the Code of Ordinances. Section 5. Effective Date. This ordinance shall be effective upon passage by the City Commission on second reading. 0 Page 6 of 7 Additions shown by underlining and deletions shown by eve - g. Ord. No. 15 -06 -1883 PASSED AND ADOPTED this /S y of )2006. • is • ATTEST: t TY CLERK READ AND APPROVED AS TO FORM Lui illgueredo, agin Gaop & Figueredo, P.A. Office of City Attorney JAMy DocumentskesotutionAOrdinance Ethics Defense revised.doc I "Reading— 06/06/06 2nd Reading — 06/18/06 COMMISSION VOTE: 5 -0 Mayor Feliu: Yea Vice Mayor Wiscombe Yea Commissioner Beckman: Yea Commissioner Birts: Yea Commissioner Palmer: Yea Page 7 of 7 Additions shown by underlining and deletions shown by evef g • • a� yo E�8 �• N A W �o �. a a;•EEo fn '`g STm��E W �a E N nSS � r3 oy O 4 ag <URI§ wo sCC9 09 w E 5�oz. } Vm b=p aSCpmC,g�� o° ygaa�cogg s s IF ;-all `8� 9 g X091 d e C a 2 s J LL A 9260 Sunset Drive, Suite 118, Muni, FL 33173 • Tel.• 305-273-3901 Fax: 305-273-3902 • jpC?jlppznet July 15, 2009 W. Abijola Balogun, Esq. City Manager, City of South Miami 6130 Sunset Drive South Miami, Florida 33143 Luis Figueredo City Attorney, City of South Miami 18001 Old Cutler Road, Suite 556 Miami, Florida 33157 RE: BALOGUN v. NEWMAN, ET. AL.; CASE No: 09 43364 CA 25;)N THE MiAMT -DADE COUNTY CIRCUIT COURT. Gentlemen: Pursuant to 15 -06 -1883, Ordinances, City of South Miami, Commissioner Valerie Newman, by and through the undersigned, submits this request for legal defense services. In compliance with the above ordinance, my curriculum vitae and a copy of the complaint, notice, summons, charge and all other documents or pleadings are also enclosed. This firm charges $275.00 hourly for attorney time and $150.00 for paraprofessional time. Billing is in real time and not in tenths. The above rule requires the City Manager to act on the Newman request within ten days. I understand that the request should be sent to the City Attorney, however same is contemporaneously sent to the City Manager as well, from an abundance of caution. Sincerely, f Jorge L. Pinon, P.A. squire Jun 15 02 09:16p Kevin F.RIENEWMAN Commissioner Tune 29,2009 To: W.Ajjboja�alopn, City Manager Luis FigaerdO, City Attorney 305-661-2811 P•1 6130 SUCIS6t Drive south Miami, Florida 33143.5093 Tel: (305) 668-24B2 • Cell: (786) 351-1648 FM (305) 663-6348 Dear City Manager- 1 Of The Law Offic,-- gives MY counsel of record Jorge I�in 3L This addendum/supplMnIN't autto ordinance no. 15-06-1893 legal autKO-dty to formally request pursu of 7B JorgB FiQ% d, ,fmr e ju the above, menflonod actim- I expenses a it relates to ray le-gal and the letter is attac;he tjjereto. &aU serve as the "Req=St This addendum/sIVIcment an in big official capacily, as laid out in the; e, to fhe City Manager, as laid out in the foregoing i for the provision of legal serviC�' I in his/her official capacity and to !he, CitY AttoxneY, Ordiwet, Siacerely, VaIe6jc:NewMaD- City Commissioner South Miami A Am o'cily soot DAM 'ITE LAW OFFICE OF JORGE L. PITON, P.A. 9260 Sunset Drive, Suite 118, Miami, Florida 33173 Telephone: (305) 273 -3901; Facsimile: (305) 273 -3902 Email: jp@jlppa.net FIRM PROFILE Boutique law firm emphasizing commercial litigation and business torts, servicing the Miami -Dade, Broward and Hillsboro Counties. EXPERIENCE The Law Office of Jorge L. Pinon, P.A. ■ 2006- Present, Founder and CEO, Miami, Florida ■ Protracted and complex litigation against City, of Coral Gables, Florida, involving Akerman- Senterfitt, Bryant Miller Olive and Coral Gables City Attorney representing City, negotiated to satisfaction of the parties; ■ Negotiation of Miami -Dade County Construction Trades Qualifying Board issue where client had previous representation and substantial fine levied; ■ Representation large condominium association against its insurance carrier for bad faith failure to settle Hurricane Katrina claim, achieving positive results for client; ■ Representation of several businesses in buy -sell agreements; ■ Representation of and resolution of, contractor's liens without the necessity of litigation; ■ Successful defense of over 100 real restate foreclosure matters, both commercial and residential. ■ General counsel to two large business entities. SELF EMPLOYMENT IN REAL ESTATE VENTURES • 1992 -2006 • Involved in all phases of real estate development, both commercial and residential; • Special emphasis on developing and planning of real estate projects involving top area contractors; • Participated in development of Latin American Cafeteria stores; • Acted as agent in several real estates sales. STAFF ' Edtrik D. Baker, Esquire, (1979- July 4, 2009) Additional Staff includes bi- lingual office manager, literate in numerous computer programs and applications, with emphasis on record retrieval and record management. Paraprofessional with over 20 years' experience as trial counsel for major insurance carriers such as Nationwide Insurance, Fireman's Fund, Farmer's Insurance Group, FIGA, Associated • Industries of Florida, Chrysler Insurance, Hertz, and others. Extensive litigation and pre -suit negotiation background. Trial advocacy instructor. Miami -Dade Community College, Miami, Florida A.A. 1998 Education Inducted, Gold Key National Honor Society 2000 Florida International University B.A. 2001 (Major: International Relations) Florida International University J. D. 2005 (Summa Cum Laude ) Florida Bar, member in good standing 2006 Languages English, Spanish References References are available on request. IN THE CIRCUIT COURT OF THE 11 Tx JUDICIAL CIRCUIT IN AND FOR MIAMI -DARE COUNTY, FLORIDA GENERAL JURISDICTION DIV. W. AI,IBOLA BALOGUN, CASE NO. 0 94 33 6 4 CA 2 5 Plaintiff, V. C� VALERIE NEWMAN, in her Official Capacity as Commissioner and CITY OF SOUTH MIAMI, FLORIDA, ` Defendants. t SUMMONS THE STATE OF FLORIDA: To Each Sheriff of the State: YOU ARE COMMANDED to serve this summons and a copy of the complaint in this action on Defendant: VALERIE NEWMAN, City Commissioner 6910 SW 646 Avenue Miami, Florida 33143 Each defendant is required to serve written defenses to the complaint on Neil Flaxman, Esq., Neil Flaxman, P.A., Attorney for Plaintiff, whose address is, 550 Biltmore Way; Suite 780, Coral, Gables, Florida, within 20 days after service of this summons on that defendant, exclusive of the day of service, and to file the original of the defenses with the Clerk of this court either before service on Plaintiff's attorney or immediately thereafter. If a defendant fails to do so, a default will be entered against that defendant for the relief demanded in the complains. DATED on OUN 5 2009 > 2009. . HARVEY RUVIN As Clerk of the Court By: YADIRA DEL VALLE SPICER 5250 As Deputy Cleric 1 SUMMONS IMPORTANT A lawsuit has been filed- against you. You have 20 calendar days after this summons is served on you to file a written response to the attached complaint with the clerk of this court. A phone -call will not protect you, Your written response, including the case number given above and the names of the parties, must be filed if you want the court to hear your side of the case. if you do not file your response on time, you may lose the case, and your wages, money, and property may thereafter be taken without further warning from the court. There are other legal requirements. You may want to call an attorney right away. If you do not know an attorney, you may call an attorney referral service or a legal aid office (listed in the phone book). If you choose to file a written response yourself, at the same time you file your written response to the court you must also mail or take a copy of your written response to the "Plaintiff/Plaintiff's Attorney" named below. IMPORTANTE Usted ha sido demandado legalmente. Tiene 20 dias, contados a partir del recibo de esta notificacion, pare contester la demanda adjunta, por escrito, y presentarla ante este tribunal. Una llamada telefonica no to protegera. Si usted desea que el tribunal considere su defensa, debe presentar su respuesta por escrito, incluyendo el numero del caso y los nombres de las partes interesadas. Si usted no aontesta la demanda a tiempo, pudiese perder el caso y despojado de sus ingresos y propiedades, o privado de sus derechos, sin previo aviso del tribunal. Existen otros requisitos legales. Si to desea, puede usted cons-altar a un abogado inmediatamente. Si no conoce a un abogado, puede llamar a una de las oficinas de asistencia legal que aparecen en la guia telefonica. Si desea responder a la demanda por su cuenta, al mismo tiempo en que presenta su respuesta ante el tribunal, debera usted enviar por correo o entregar una copia de su respuesta a la persona denominada abajo como "Plaintiff/Plaintiff's Attorney" (Demandante o Abogado del Demandante). IMPORTANT Des poursuites judiciares ont ete entreprises contre vous. Vous avez 20 fours consecutifs a partir de la date de 1'assignation de cette citation pour deposer une reponse ecrite a la plainte ci jointe aupres de ce tribunal. Un simple coup de telephone est insuffisant pour vous proteger. Vous etes obliges de deposer j votre reponse ecrite, avec mention du numero de dossier ci- dessus et du nom des parties nominees ici, si vous souhaitez que le tribunal entende votre cause. Si vous ne deposez pas votre reponse ecrite dans le relai requis, vous risquez de perdre la cause ainsi que votre salaire, votre argent, et vos biens peuvent etre saisis par ]a suite, sans aucun preavis ulterieur du tribunal. Il y a d'autres obligations juridiques et vous pouvez requerir les services immediats d'un avocet. Si vous ne connaissez pas d'avocat, vous pourriez telephoner a un service de reference d'avocats ou a un bureau d'assistance juridique (figurant a 1'annuaire de telephones). Si vous choisissez de deposer vous -meme une reponse ecrite, i] vous faudra egalement, en meme temps que cette formalite, faire parvenir ou expedier une copie de votre reponse ecrite au "Plaintiff/Plaintiff s Attomey" (Plaignant ou a son avocet) nomme ci- dessous. Plaintiff's Attorney: Neil Flaxman, P.A. Brickell Bayview Centre, Suite 3100 80 Southwest 8a' Street Miami, Florida 33130 Florida Bar No. 025299 E r • LA IN THE CIRCUIT O I lTx IN AND FOR JUDICIAL. CIRCUIT . MIAMI DADE COUNTY,.FLORIDA • ; `i ` W. AJIBOLA BALOGUN, . Plaintiff, V. VALERIE NEWMAN, in her Official Capacity.as Commissioner and CITY OF SOUTH MIS, FLORIDA Defendants. / VERII`IED COMPLAINT OLA BALOGUX.. (" Plarntiff') and sues VALERIE COMES NOW, W AJIB and CITY NEWMAN, in her Official Capacity as Commissioner ("Defendant Newman } OF SOUTH MiAJ&-> FLORIDA ("Defendant City ,) and states: jurisdiction and Venue 1, This is an action for injunctive relief to prevent continuing interference with advantageous contractual relationships. 2 plaintiff is and was at all times relevant the City Manager of the City of South Miami, Florida 3. Defendant Newman is and was at all times relevant a City Commissioner of the Defendant City. 4 The acts complaine County, Florida. d of occurred in Miami -Dade •� Facts giving rise to Cause of Action 5 Plaintiff, in performing his responsibilities and establishing his compensation, entered into a Contract with the Defendant City on June 3, 2008, which Contract is in full force and effect, a cope being attached as Exhibit "A." 6. In addition to those responsibilities as set forth in the Contract, Plaintiff's responsibilities included those matters as prescribed by the Defendant City's Charter and its Ordinances. 7. Defendant Newman, at all times relevant, was required to comply with the Defendant City's Charter, its Ordinances and Plaintiffs Contract. g. On or about October 2008, AT &T installed a cabinet box in front of the home of a Defendant City resident, in the Defendant City's right of way, which was installed with proper permits. The cost to AT &T for the installation was $40,133.00. t I - 9. On or about January 30, 2009, Defendant Newman demanded of Defendant City i employees that the cabinet box be removed and placed in the swale area of another home. 10. On or about January 30, 2009, Defendant Newman demanded of AT &T that the box be removed and relocated notwithstanding, the fact it had been legally permitted. Defendant Newman took such action with direct discussion with AT &T. AT &T then agreed to move the cabinet box. 11. On or about February 3, 2009 at a public meeting the Defendant City directed that no action be taken on the moving of the cabinet box until February 17, 2009, wherein additional information related to the moving of the cabinet box and Defendant Newman's involvement could be considered, 2 , 12. On February 10 2009, notwithstanding the Defendant City's directive the Defendant Newman directed the Plaintiff to issue the permit for the removal and relocation of the cabinet box. 13. Between Febivary 3, 2009 and February 10, 2009, Defendant Newman contacted AT &T resulting in a frustration of the Plaintiff's ability to obtain an extension of time for the issuance of the permit to remove and relocate the cabinet box so that he could follow the directive of the Defendant City not to take any action related to the removal and relocation of the cabinet box. 14. On or about February 11, 2009, early in the day the Plaintiff indicated to public works staff that the cabinet box could not be moved as a result of the City Commission's directive of February 3, 2009 and not to take any action related to the cabinet box until the matter was considered. at the February 17, 2009 meeting. 15. On or about February 11, 2009', in an e-mail to the City Attomey and Plaintiff, i Defendant Newman indicated that the Plaintiff, as well as a public works employee, could be considered insubordinate should the permit not be forthcoming and AT &T withdraws the offer to move the cabinet box. However, on February 11, 2009, giving in to Defendant Newman's demand, based upon the Defendant Newman's threat of insubordination the permit to move the cabinet box was issued. 16. On or about February 17, 2009, the City Commission at a public meeting discussed the issue related to the moving of the cabinet box. Commissioner Beckman asked Defendant Newman at such meeting if she had spoken to an AT &T representative about the. cabinet box. Defendant Newman, at such public meeting, indicated contrary to the facts that she had not. i 17. On or about May 1, 2009, at a meeting with Plaintiff and Plaintiff's staff present d the Plaintiff indicating "that the same thing better be the Defendant Newman, threatene done to the employees involved with this transmission incident (the Public Works 3 Director and the Assistant Public Works Director) as was done to Kathy Vasquez otherwise, I will question your management abilities." Kathy Vasquez had been fired. At the same meeting, Defendant Newman asked for the Plaintiff's personnel file and further . threatened the Plaintiff by implying that if the terminations did not occur that "during evaluation, I am going to evaluate you on management and issues like this." 18. On about May 1, 2009, Defendant Newman made a statement at a meeting directed at the Plaintiff, "The Chief of Police needs to be removed" and also indicated "Major Mills needs to be removed." Clain for Injunctive Relief for Interference With Advantageous Contractual Relationships Against Defendant Newman 19. The Defendant City Charter makes it clear under Article V1, Section 7, Autonomy: "Neither the Commission nor any of its members shall direct or request the appointment of any person to, or his or her removal from office by the City Manager or by any of his or her subordinates, or in any manner take part in the appointment or removal of officers and employees in the administrative service of the City. Except for the purpose of inquiry, the Commission and its members shall deal with the administrative service solely through the City Manager and neither the Commission nor any member thereof shall gave orders to any subordinates of the City Manager, either publicly or privately. This section shall not apply.to officers appointed under Article II, Section 7 of this Charter." 20. The Defendant City Charter also provides among other powers the following powers to the Plaintiff under Article lI[ Section 5. Powers and Duties:. "The City Manager shall be the chief executive officer and head of the administrative branch of the City government. " E. Direct and supervise the administration of departments, offices and agencies of the City, except as otherwise provided by this Charter or by law. " 21. Section 4.2, p a g e 3, of Plaintiff Contract provides in part: � "No Commission member, acting alone and without authorization of the Commission shall direct the City Manager to enter into or terminate any contract or to employ any person or, to grant or withhold funds to any person, or to instruct any person under the City Manager's authority to take or refrain from . taking any specific action. " 22. Defendant Newman violated such Charter provisions and contractual rights by: A. Giving directives to the Plaintiff subordinates related to removal of the AT &T cabinet box and threatening the Plaintiff with insubordination if her directives related to the permit were not followed notwithstanding the fact that the Defendant City indicated no action should be taken concerning the removal of the Cabinet Box. (Paragraphs 8, 9, 10, 11, 12, 13, 14, 15 and 16) ODB. Giving directions or requesting of the Plaintiff to fire employee subordinates or those in the administrative service who were involved in the transmission incident, and indicating if it were not done it would reflect negatively on the Plaintiffs management abilities. (Paragraph l 7) C. Giving directions or requesting the Plaintiff to fire employee subordinates or those in the administrative service, inclusive of the Police Chief and Major Mills Public Works Director and Assistant Public Works Director. (Paragraph 17 and 18) 23. The preamble to the City of South Miami's Charter (section (A) (2)} provides: "Truth in government. No County or municipal official or employee shall knowingly, furnish false information on any public matter, nor knowingly omit i significant facts when giving requested information to members of the public: " 24. Defendant Newman violated such provisions by: • A. Misrepresenting at a public meeting the fact that she had not spoken to anyone at AT &T related to the cabinet box contrary to the truth that in fact she had.(Paragraph 14) 25. The acts complained of were not done in good faith by Defendant Newman, but were knowingly done to usurp the power of the Plaintiff, malign his credibility and target him for ouster. 26. Defendant Newman's conduct is continuing and if not enjoined, will cause the Plaintiff irreparable harm as the Plaintiffs Contract has a term of five (5) years beginning on March 3, 2008 and the Plaintiff anticipated that with satisfactory performance under the Contract, such Contract would be renewed for successive periods. The Plaintiff has.a property right in his employment as a result of such Contract. The Plaintiff's advantageous contractual relationship with the Defendant City was and continues to be interfered with by Defendant Newman as to make its performance impossible or more onerous and thus to impair or defeat the value of the rights established by such Contract. 27. The Plaintiff has a clear legal right to the relief requested as the acts complained of not only constitute an interference with the Plaintiff's rights and responsibilities under his Contract, but also constitute a violation of the Defendant City's Ordinances and its Charter. 28. The Plaintiff has no adequate remedy at law in that damages are unable to be calculated as the Plaintiff has not as of this time suffered monetary damages, but fears absent injunctive relief he will so suffer. 29. it would be highly inequitable and unjust to allow Defendant Newman to use her official position with the Defendant City to destroy the property rights of the Plaintiff under the Contract and continue to violate the Defendant City's Charter and the Plaintiff s Contract. 6 30. Plaintiff has exhausted all conditions precedent to bringing this action or that such l conditions precedent has been waived. 31. Plaintiff objected to and refused to participate in the demands and conduct of Defendant-Newman which were contrary to the Defendant City's Charter and its Ordinances and his Contract and so notified the Defendant City however, the Defendant City took no action to remedy the situation and unless an injunction is issued the conduct of Defendant Newman will continue causing the Plaintiff irreparable harm. 32. Plaintiff is in need of the following temporary and permanent injunctive relief restraining Defendant Newman from: A. Instructing any person under the Plaintiff City Manager's authority to take or refrain from taking any specific action; B. Except for the purpose of inquiry, deal with the administrative service, except through the Plaintiff City Manager or give any orders to any subordinate of the City Manager, either publicly or privately; i C. Requesting the removal from office by the Plaintiff City Manager of any his subordinates or removal of any officers or employees in the administrative service of the Defendant City; o D. Knowingly furnish false information on any public matter, nor knowingly omit significant facts when giving requested information to members of the public. i 33. All of the above being required by the Defendant City's Charter and the ' Plaintiff's Contract. Claim Against City 34. Plaintiff re-alleges the allegations in paragraphs 1 -33 above. i 35. Plaintiff objected to and refused to participate in the demands and conduct of Defendant Newman which were contrary to the Defendant City's Charter and its 7 Ordinances and his Contract and so notified the Defendant City however, the Defendant J City took no action to remedy the situation and unless an injunction is issued the conduct of Defendant Newman will continue causing the Plaintiff irreparable harm. 36. The Defendant City has been joined as a necessary parry as it may have an interest in the subject matter of this litigation. WHEREFORE, the Plaintiff requests the following relief as to the Defendant Newman: That the Court enters an order temporarily and permanently restraining the Defendant Newman from: A. Instructing any person under the Plaintiff City Manager's authority to take or refrain from taking any specific action; B. Except for the purpose of inquiry, deal with the administrative service, except through the Plaintiff City Manager give any orders to any subordinate of the Plaintiff City Manager, either publicly or privately; C. Requesting the removal from office by the Plaintif City Manager of any his subordinates or removal of any officers or employees in the administrative service of the Defendant City; D. Knowingly furnish false information on any public matter, nor knowingly omit significant facts when giving requested information to members of the. public. And further A. Award the Plaintiff such other relief as is warranted under the facts and law. B. Award the Plaintiff reasonable attorney fees and costs of this action. C� And as to the Defendant City: A. Award the Plaintiff reasonable attorney fees and costs of this action. B. Award the Plaintiff such other relief as is warranted under the facts and law. Neil Flaxrnan, P.A. Attorney for Plaintiff Brickell Bayview Centre, Suite 3100 80 Southwest 81 Street Miami, Florida 33130 Tel: 305- 810 -27 Fax: 305,�d,1� -2 24/ By L7 Nei Flaxman, Esq. s Florida Bar No. 025299 i 6 • And as to the Defendant City: A- Award the Plaintiff reasonable attorney fees and costs of this action. B. Award the Plaintiff such other relief as is warranted under the facts and law. Neil Flamnan, P.A. Attorney for Plaintiff Brickell Bayview Centre, Suite 3100 80 Southwest e Street Miami, Florida 331 0 Tel: 305 -810 -278 Fax: 305 -810- Meil Flamm-an, Esc . Florida Bar No. 025299 • s/ it 011 11--M�� State of Florida ) ss: County of Miami Dade ) BEFORE ME, the undersigned authority, personally appeared W. AJIBOLA BALOGUN, who is personally known to me or produced1_� a�7-QsV1 -UCO- as identification and who by me being first duly sworn, states that he executed the foregoing and that it is true to the best of his kiaowledge and belief. SWORN TO AND SUBSCRIBED before me this Lr day of June, 2009. NOTARY PUBLIC, State of Florida (NOTARY SEAL) �A �Y - a Plea DD 553155 g. �Expkes�Y16,2010 Caraesfon # �� By NaOmW N*tY +m• L* 10 EmPLOYMENT AGREEMENT • BETWEEN. CITY OF SOUTH MIAMI AND W. ,AJ BOLA BALOGUN I I i tD This Agreement is made and entered into this day ofd 2008, by. and between the City o£ South Miami (hereinafter, "City ") and W Aiibola Baloaun (hereinafter, "City Manager "), which hereafter may be individually referred to as a `'arty" or be collectively referred to as "Parties ".. In consideration of the promises, mutual covenants, conditions, provisions and undertakings contained in this Agreement, and for other good and valuable consideration, and receipt and sufficipcy of which is hereby acknowledged by both Parties, the Parties covenant and agree with each other as follows: I. AppOjNTMENT AS CITY MANAGER The City, pursuant to art IQ, sec I of the City Charter and actin through its Mayor and City 26�j elected to employ mi Comssion ( "CommissiOl ), " have by City Resolution d� W Aiibola Baloyn as its City Manager. Mr. Balo upon approval of the terms of this Agreement by the Commission, agrees to serve as the City Manager of the City of South Miami in accordance with the terms and conditions of this Agreement. 2. 'TERMS OF EMPLOYMXNT The City Manager, pursuant to art. H, sec 7A of the City Charter, serves at the pleasure of the Commission, which is empowered to terminate the services of the City Manager at any time in accordance with the provision of this Agreement. This Agreement shall continue fora fixed term of sixty (50) months, beginning March 24, 2008. Except as otherwise provided in this agreement, City Manager shall remain the exclusive employee of the City. However, the City Manager may devote his personal time and interest to matters relating .to public service such as community service, teaching, writing, speaking engagements, pro bono services and other professional endeavors provided they are performed during the City Manager's off -duty time. In the event any such activities require that the City Manager engage in non -city related activity during his scheduled working hours, the City g manager shall disclose the nature of the endeavor, its duration, estimated time requirements and schedule commitments to the City Commission and receive the approval of the City Commission prior to participating in the activity. Furthermore, the City Manager, prior to engaging in such endeavors, shall ensure that such endeavors: �) do not violate the prohibition against dual office holdings; do not create reality or appearance of conflict of interest; and Page 1 of 9 EXMBIT A do not materially detract from the time or schedule to accomplish the City Manager's duties- or objectives. This Employment Agreement neither alters the nature of the employment from an "at -will" P the laws of the State of Florida. property right to to zmnt under employment nor creates a ro erty ig mP y DUTIES AND RESPONSIBILITIES OF THE CITY MAN.A.GER. 3. The City Manager, as the Chief ,A.dministratrve Officer of the City, shall be responsible for adopted by the Commission, and the administration of all City affairs, for carrying out policies the City budget and programs as directed by the Commission. for implementing The City Manager shall report and be accountable only to the Commission. The City Manager shall Perform those. duties prescribed by art. DI, see. 5 and other relevant by law or inter -local agreement, and as directed by the provisions of the City Charter; prescribed Commission. The City Manger shall be solely responsible for 1urIng an availability or policy direction funding p subject to limitations imposed by budget authorizations, by the Commission. The City Manager shall devote his time and interest to h cMana Manager, to whatever time minimum scheduled by th e City day or day of week reasonably required or average of forty (40) hours per week The City Manager shall report to the City Attorney any alleged violation of. Federal, State or I City lairs, codes, ordinances as well as any violations of any terms of this contract. The City Manager warrants that: (i) He does not now have, and that he will not knowingly enter into any or relationship with another Person or entity that creates a contract conflict or interest, as the term is described in se. 2 -11.1 of the code of of Interest and Ethics Codes, ' Miami -Dade County and the city's conflict ! u He has not paid or agreed to pay any person any consideration for the (� procurement of this Agr eement. j(iii) He will uphold the State, County and City ethics does and the Florida Public Records laws (Sunshine Laws), and Public Meeting and (iv) In the event he has any concerns or reservations about any pending relate to the above topics, he will seek legal advice actions as they may from the City Attorney and/or direction from the Commission. Page 2 of 9 �!� • AND RTSPONSiBILIT ES OF TIDE CITY 4, DUTIES their concerns 4.1 To the extent practical, the Commission members shall address and other City matters directly regarding the financial condition, operations, personal shall address those matters with the pertinent City staff, -to the City Manager, who consultants, contractors and advisors for response to the Commission 4:2 No Commission member, acting alond and without authorization of the Commission, terminate any contract or to employ aziY . shall direct the City Manager to enter into or or to instruct any erion.under person or, to grant or withhold funds to any person, City Manager's authority to take or refrain from taking any specific VI, the sec shall not be applied to limit the non - interference provisions of art. paragraph 7 of the City Charter. 4.3 The Commission shall review the performance "of the City Manager annually, not date established in this Agreement, and in later than 64 days before the anniversary accordance with established criteria for the annual performance reviews for the City be.- Manager. Merit increase of a minimum established in the Agreement shall to the City Manager on the 596 day before the anniversary automatically awarded date, if Commission fails to perform or complete performance review for the Manater- 4.4 The Commission shall consider such factors as job performance, experience, and actors as or other f length of employment, satisfaction of objectives, responsiveness may deem to be important. in determining the annual merit salary �RD the commission increase. I 4.5 The Commission, for unforeseen fiscal adversity, may elect to either temporarily or the salary and/or benefit payments of City employees. In the permanently reduce the Commission reduces the salary or other benefits of the City Manager in an event a greater percentage then an equivalent "across- the - board" reduction of salary or in the event the City refuses to comply benefits of all .full-time City employees, or provisions of this Agreement, the City, upon notification i with any other substantive by the City Manager within fifteen (15) days of such action, shall have forty -five (45) days from such notice within which to cure the violation. If the violation continues termination "for beyond the cure period it shall considered a constructive ", r which case the associated severance provisions, as described convenience herein; shall be effective as of the day the violation occurred and pursuant to the immediately before the violation. 1 I salary, benefits or other conditions in effect 3 9 Page of i i S. SALARY AND BE'NF-FXTS 5,1 Salary 5.1.1 The City Manager shall initially receive an annual base salary of $165,OOQ.OQ comznerieing from. the date of appointment as City Manager frequency and proportion as that of other salaried and paid in the same City employees and subject to the same legally required dednchons. The City Manager shall to be considered for a maximum of seven percent (70A) merit increase effective on his anniversary date. 5.1.2 For no additional compensation, the City Manager shall continue to serve as Public Works Director until Septerriber 30, 2008, 5.13 The City Manager shall be entitled to and receive the sa to annual cost City of- living adjustment (COLA) as may granted administrative employees. The City Manger's role, if' any, in negotiating such and adjustment with recognized collective bargaining organization shall not be considered a conflict of interest. 5.2 Benefits 5.2.1. The City Manager shall accrue the equivalent of 1.5 days of "vacation time' and 1.0 days of "sick time" per month. The City Manages hall accumulate unused vacation time. in addition, the City Mang receive personal days in the same fashion city employees accrue personal days. 5.2.2. The City Manager shall be entitled to all paid holidays customarily granted to all City employees. 5.2.3. All comprehensive medical, dental, vision, disability and other health and wellness insurance options shall be available to the City sMMa also and his family at no cost to the City Manager comprehensive h annual provide the City Manager, at the City's expense, physical examination, supplemental life insurance and life insurance coverage in an amount equal to the City Manager's annual base salary. 5.2.4.' The City shall contribute to a deferred compensation plan selected by the City Manager in an amount equal� eighteen � ns shall oDCC�)ur of the City on a pro - Manager's annual base salary. such �n rated basis per City pay period. . 5.2.5. The City shall provide the City Manager with a monthly expense allowance equal to the allowance provided to a member of the city Commission. 5.2.6. Because of the nature of the City Manager's duties and responsibilities, the City Manager will require the use of a take —home automobile. The take home vehicle may be utilized for personal use. In the event the Commission elects to replace the automobile currently used by the City Page 4 of 9 Manages', any replacement automobile will be. a similar model. Accordingly, the City Manager may, at his option, use his own motor . vehicle or continue to use the automobile provided to him by the City. If the City Manager elects to use a city provided automobile, the City shall be responsible for any pay of its purchase and all .expenses related to its operation, maintenance, repair, fuel and replacement. The City shall also pay for all. Liability, property comprehensive uninsured motorist, personal injury .protection and medical insurance for the automobile. If the City Manager elects to use an automobile which is not furnished by the City, the City shall pay the City managez a monthly allowance of $550 and a $200 monthly gas allowance. The fuel allowance shall be adjusted annually by the City Commission based on fuel costs. 5.3 Equipment 5.3.1 The City shall provide at no cost to the City Manager all equipment, material and devices necessary or desired to efficiently and effectively cry out the City Manager's duties to the City's benefit, which may include; but not limited to: a cellular phone, personal digital assistant, radio, pager, hard hat, reflective vest, emergency equipment, etc. Any equipment, material and devices so provided shall remain the property of the City and shall be immediately returned to the City by the City Manger upon termination or expiration of this Agreement. 5.3.2 The City shall indemnity, defend and hold harmless the City Manager against any tort, professional liability claim or demand or any other legal action arising of an alleged act or omission occurring m the performance of the City Manager's duties. The City g compromise or settle any such claim, demand or legal action and pay the amount of any settlement or judgment rendered thereon. Additionally, the City, or its insurer, will provide suitable legal representation for the City Manager for any and all proceedings, mediations, arbitrations, law suits or appeals related to or arising out of the City Manager's affiliation with the City. The City shall be under no obligation to indemnify and hold harmless the City Manager where he is found to have acted dishonestly, in bad faith or in a manner exhibiting wanton and willful disregard of human rights, safety or property. This entire indemnification. provision shall survive the termination of this Agreement. page 5 of 9 r5.3.3 The City Manager shall-furnish a surety bond to be approve by the Commission, as required under art. VI, sec ' 2 of the charter, in such amount as may be determined by the Commission. The City shall be responsible for payment of the premium of this bond. The City Manager shall secure a surety bond, upon approval of the commission, within 30 days of the effective date of this agreement. 5.3.4 The City shall pay registration, travel and per diem expenses, as authorized by law, for the City Manager's attendance and representation o£ the City at the International County Manager Association, the, f Cities City/County Management Association and the Florida Leagu annual conferences, . and any other related conferences, meetings, conventions or seminars the Commssion may direct or authorize the City Manager to attend. 5.3.5 The City shall reimburse the City manager for pertinent, reasonable and customary professional society or association dues, subscriptions, training or other costs related to the continued professional growth and recognition of the City Manager. 6. TERMINATION i 6 1 The City may terminate.this Agreement with. or without cause in accordance with art. III, sec 3 of the City Charter, subject only to the severance provision set forth in this Agreement i 6.2 The term "for cause' °shall be defined to mean (1) breach of any material term or condition of this agreement; (2) conviction of a felony during the term of i this agr condition (3) misconduct in office; (4) gross insubordination and, or willful neglect of duty; oz (5) a knowing or intentional violation • of the Florida or Miami -Dade County conflict of interest and code of ethics laws. i A "for cause" termination decision maybe reviewed by the circuit court in an original action or a de novo review proceeding- 6.3 In the event that the Commission wishes to terminate the City Manager "for cause ", the Commission shall first submit "A Notice of Intent to discipline/terminate" in writing to the City Manager, detailing the rmson(s) of the intent. Upon receipt of the Notice of Intent to discipline/terminate the shall have seven (7) days to request a hearing.. A hearing shall City Manager Manager within thirty (30) days. . be afforded to the City Page 6 of � • I I i i 6.4 In the event that the Commission terminates this Agreement "for cause ", the City shall not be obligated to pay and the City Manager shall not be entitled. to receive any severance eampensatian other than the cash value of accrued but.umsed leave time or sick time, and any salary and other benefits earned up to the effective date of the termination, unless the amounts. for accrual leave and sick time are used as a set off for any amounts owed by the City Manager to the City. The payment for unused leave or sick time shall be paid within seven (7) days of the effc -ctive date of the termination.. 6.5 In the event that the Commission terminates this Agreement "for convenience' during the first year of the Agreement terra, the City shall pay the City Manages' a lump sum cash payment equal to the City Manager's base salary for six (6) months as a severance benefit. The severance benefit shall be paid within seven (7) days of the effective date of the termination. In addition to the severance benefit, the City shall continue to provide all insurance benefits from the effective date of the termination for a period equal in time to the basis of the severance benefit. The City shall not be obligated to pay for any other allowances or benefits after the effective date of termination and shall not be financiallY obligated to the City manager thereafter, except as may be required by the indemnity provision herein. In the event the City Manageac terminates this Agreement, the City Manager shall not be entitled to severance benefits. .7. RETURN OF PROPERTY 7.1 Immediately upon termination of this agreement, the City Manager shall return all City property in his possession or control, including but not limited to keys, computers, cell phone, pagers, vehicle, documents and any other property of the City. g, OTHER TERMS AND CONDMONS Dispute Resolution. Any claims or dispute arising out of or related to this Agreement shall be subject to informal mediation as a condition precedent to the initiation -of legal or equitable proceedings by either party.' Mediation shall be deemed complete upon either an executed written settlement of the claim or dispute or the expiration of forty — flee ith a written (45) days from the date either party serves the other w request for mediation and the other party has not responded - The parties shall share equally the mediator's fee and any filing fees. Mediation shall be held in Miami -Dade County, Florida and settlements or other agreements reached in mediation shall be enforceable as settlement agreements in the Circuit Court for the 11"' Judicial Circuit of the State of Florida. Waiver of a Jury Trial. Both parties hereby waive any right to arbitration and to jury trial. Venue. Any legal or administrative action arising under this Agreement, Page 7 of 9 M.- including an action to enforce the Agreement, shall be brought in state • court in Miami -Dade County, •Florida and administered and be governed r by Florida law Construction. In the event a court of competent jurisdiction must interpret any word or provision of this Agreement, the word or provision Shall not be construed against either, party by reason of drafting or negotiating this Agreement. Notice. Any notice required or provided for in this .Agreement shall be given to the parties at the addresses-provided in the execution of this ,Agreement. Severability. In the event any provision of this Agreement is declared by a court of competent jurisdiction to be invalid, the declaration shall not affect the validity of the Agreement as a whole or any,part of the Agreement other than the part declared to be invalid- The The waiver by either party of a breach of any provision herein by the other shall not operate or be construed as a waiver of any subsequent breach by that party. Sovereign Immunity. The City does not waive its sovereign immunity for any claim arising under, or related to, this agreement other than for breach of contract. The City shall not be liable to pay for damages, other than amounts due under this agreement, in the event it is adjudicated to be Liable for breach of contract, or otherwise permuted by law. Notwithstanding this limited waiver of sovereign immunity, the City does not waive its immunity from, and shall not pay awards for prejudgment interest and/or at torney's fees. Policy. The Commission may fix any other.' terms and conditions of employment it may determine from time to time to be necessary and in the City's best interest relating to the performance of the City Manager, provided that such terms and conditions are compatible with the provisions of this agreement, Florida Statues and any other law, and are agreed to in writing by the City Manager. Page 9 of 9 OF so `H C 61 a0 Sunset Drive South Miami, Flori 31+3 ATTEST: Maria Menendez, xty Clerk W. Ai ibola Balo ity Manager •15150 SW 166"' Street, Miami, Florida 33187 APPROVED AS TO FORM: SSESS: igueredo, City Attorney /� n n Maria M. Menendez City Clerk 0461 City of South Miami, Miami Dade County, Florida do hereby certify that this is true and correct copy of Employment Agreement between the City of South Miami and W. Ajibola Balogun as shown in the official records of the City of South Npami, Miami Dade County, Florida. Given under my hand and seal, this 'V�t'_ day of '2_008. City Clerk r Page 9 of 9 0. (D 3 ADDENDUM TO EWLOYNMNT AGREEMENT t ( "Addendum ") is made this To Employment Agreemen This Addendum . e "City") and W. A' ibola da of March 2009, between City of South Miami (h reinafter, City) J Y> Balogun (herei- iafter, "City Manager). WHEREAS the City and City Manager previously entered into an Employment ,d... Agreement on June 2008; . WHEREAS subsection 4.3 of the executed employment agreement does not establish a minimum merit increase and the last section: that provides that in the event the city manager does not receive a performance review:60 days prior to his anniversary date that he would receive an automatic merit increase in the minimum amount established under the contract is therefore meaningless; and, WHEREAS the parties wish to amend the Employment Agreement to delete the Iasi sentence of subsection 4.3. WHEREAS Subsection 6.5 of the executed employment agreement does not accurately reflect the intent of the City Commmission to pay the City Manager a lump sum severance payment of six months as severance pay if he is terminated for convenience. WHEREAS the City of South Miami and W. Ajibola Balogun wish to amend the employment agreement by deleting "during the first year of the Agreement term' from the first sentence of subsection 6.5. NOW THEREFORE, in consideration of the promises and mutual covenants set forth, the parties do agree to amend the Employment Agreement as follows: 1. Subsection 4.3 of the Employment Agreement is amended to read as follows: The Commission shall review the performance of the City Manager annually, not . later than 60 days before the anniversary date established in this Agreement, and in accordance with established criteria for the annual performance reviews for the City Manager, 2. Subsection 6.5 of the Employment Agreement is amended to read as follows: 1100 • • In the event that the Commission terminates this Agreement "for convenience" the City shall pay the City Manager a lump sum cash payment equal to the City Manager base salary for six (6) months as a severance benefit. The severance benefit shall be paid within seven (7) days of -the effective date of the termination. In addition to the severance benefit, the , City shall continue to provide all insurance benefits from the effective date of the termination for a period equal in time to the basis 6f' the severance benefit. The City shall not be obligated to pay for any other allowances or benefits after the effective date of termination and shall not be financially obligated to the City manager thereafter, except as may be required by the indemnity provision herein. 3.. There are no additional .changes to the employment contract. The remainder of the original agreementis in full force and effect. IN WITNESS W REOF, this Amendment to the tEhe Coy e S nt uth Mmaami and been executed and delivered by a duly authorized officer of City by the City Manager Employee on the date first abo e written. �- J) CITY OF SOU MIAMI 6130 Sunset Dri ATTEST: South Miami, Florida 33143 Maria M. Menendez, City Clerk W. Ajibola Balo n, City Manager 15150 SW 166t' Street, Miami, Florida 33187 APPROVED AS TO FORM: WITNE ES: Lui igueredo, ity Attorney a /yJ,e _City Clerk of the City of South Miami, Miami -Dade County, Florida do hereby certify that this is a .true and correct copy of Addendum of Employment .Agreement between the City of South Miami and W. Ajibola Balogun as shown in the official records of the City of South Miami, Miami. -Dade County, Florida. Given under my hand and seal, this day of ty /dn , 2009. City Clez 29 -09 -12838 RESOLUTION NO.: F SOUTH �^ A RESOLUTION OF THE MAYOR AND CITY COMMISSION TRACT AUTHORIZING THE EXECUT ON FLORIDA, RELATING TO THE CITY MANAGER'S OF AN AMENDMENT TO THE CONTRACT BETWEEN THE CITY OF SOUTH MIAMI AND W. .A.7IBOLA BALOGtJN; PROVIDING AN EFFECTIVE DATE. V,rHEREAS, On June 3rd, 2008 the Mayor and City Commission approved by Resolution No. 81-08 - 12678 the employment agreement between W. Ajibola Balogun and City of South Miami; and, WHEREAS, Subsection 4.3 of the executed employment agreement provides that in the event the city manager does not receive a performance review 60 days prior to his anniversary date that he would receive an automatic merit increase in the minimum amount established under contract; and, WHEREAS, the employment contract does not establish a minimum merit increase, thus rendering the sentence meaningless. WHEREAS, the City of South Miami and W. Ajibola Balogun wish .to amend the employment contract by deleting the reference in the contract that provides for an automatic merit increase if the commission does not provide the city manager with a performance review 60 days prior to his anniversary date. WHEREAS, Subsection 6.5 of the executed employment agreement does not accurately reflect the intent of the City Commission to pay the City Manager a lump sum severance payment of six months as severance pay if he is terminated for convenience. WHEREAS, the City of South Miami and W. Ajibola Balogun wish to amend the employment agreement by deleting "during the first year of the Agreement term" from the first sentence of Section 6.5. NOWTHEREFORE BE IT RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA, Section 1. The above whereas clause are incorporated by reference into the body of this resolution. Section 2. The proposed amendments to the contract between the City of South IvEaini and W. Aj ibola Balogun are approved. Section 4. This resolution shall take effect immediately upon approval PASSED AND ADOPTED this 3rdday of March, 2009 Nagin Gall op & Figueredo, P.A. Office of City Attorney APPROVED: MAYOR COMIS SION 5-0 Mayor Feliu: Yea Vice Mayor Beasley: Yea Commissioner Newman: Yea Commissioner Beckman: Yea Commissioner Palmer: Yea 10C CITY OF SOUTH MIAMI INTI R--OFFICE MEMORANDUM Date: February .11, 2009 To: Mayor and City Comm'n. � . From: Luis Figueredo Re: City Manager contract 1. Subj eet: This memorandum explains the proposed amendment to the contract between the City Manager and the City of South Miami. At the time the employment agreement was amended and approved by the City Comm'ssion subsection 4.3 was modified in a manner that rendered the final. sentence meanngless. Subsection 4.3 provides for annual performance, reviews of the city manager. The last sentence originally provided that in the event the city manager did not receive a performance review 60 days pri6r to his anniversary date he would receive an automatic merit increase in the maximum amount established undef the contract The maximum merit increase amount established in the contract is seven percent (7 %). During the Commission's consideration of fhis matter a motion passed to modify the automatic in to the minimum merit increase amount established under the contract. The contract does not establish a minimum merit increase. The provision is therefore rendered meaningless. The Commission.by acclimation has directed that the minimum merit increase be established at zero. In light of the foregoing, my recommendation is that the final sentence that addresses merit increases be eliminated from the contract. The attached contract depicts the language in, strike through format that I am recommending be deleted from the contract. Recommendation Approve a resolution accepting proposed amendment to the contract cc: W. AjibolaBalogun, City of South Miami .A • IN THE CIRCUIT COURT OF THE I IT" JUDICIAL CIRCUIT IN AND FOR T&AMI DADE COUNTY, FLORIDA CASE NO.: W. AJIBOLA BAL00UN, Plaintiff, v. VALERIE NFWMAN, in her Official Capacity as Commissioner and CITY OF SOUTH -MIAMI, FLORIDA Defendants, VERIFIED ComTLAINT COWS NOW, W. AJIBOLA BALOGUN, ( "Plaintiff') and sues VALERIE NEWMAN, in her Official Capacity as Commissioner ("Defendant Newman") and CITY OF SOUTH MIAMI, FLORIDA ("Defendant City") and states: Jurisdiction and Venue on for injunctive relief to prevent continuing interference with This is an action , advantageous contractual relation ships. 2. plaintiff is and was at all times relevant the City Manager of the City Of South Miami, Florida ( 'City'). 3. Defendant Newmanis and was at all times relevant a . City Commissioner of the Defendant City. 4. The acts complained of occurred in Miami-Dade County, Florida. • Facts giving rise to Cause of Action 5. Plaintiff, in performing his responsibilities and establishing his compensation, entered into a Contract with the Defendant City on June 3, 2008, which Contract is in full force and effect, a copy being attached as Exhibit "A." 6, In addition to those responsibilities as set forth in the Contract, Plaintiff's responsibilities included those matters as prescribed by the Defendant City's Charter and its Ordinances. 7. Defendant Newman, at all times relevant, was required to comply with the Defendant City's Charter, its Ordinances and Plaintiffs Contract. 8. On or about October 2008, AT &T installed a cabinet box in front of the home of a Defendant City resident, in the Defendant City's right of way, which was installed with proper permits. The cost to AT &T for the installation was $40,133.00. 9. On or about January 30, 2009, Defendant Newman demanded of Defendant City employees that the cabinet box be removed and placed in the Swale area of another home. 10. On or about January 30, 2009, Defendant Newman demanded of AT &T that the box be removed and relocated notwithstanding, the fact it had been legally permitted. Defendant Newman tools such action with direct discussion with AT &T. AT &T then agreed to move the cabinet box. 11. On or about February 3, 2009 at a public meeting the Defendant City directed that no action be taken on the moving of the cabinet box until February 17, 2009, wherein additional information related to the moving of the cabinet box and Defendant Newman's involvement could be considered, 1 I 12, , On February IQ, 2009; notwithstanding the Defend ant City's directive the Defendant Newman directed the Plaintiff to issue the permit for the removal and relocation of the cabinet box. 13. Between February 3, 2009 and February 10, 2009, Defendant Newman contacted AT &T resulting in a frustration of the plaintiff s ability to obtain an extension of time for the issuance of the permit to remove and relocate the cabinet box so that he could follow the directive'of the Defendant City not to take any action related to the removal and relocation of the cabinet box. 14. On or about February 11, 2009, early in the day the plaintiff indicated to public works staff that the cabinet box could not be moved as a result of the City Commission's directive of February 3, 2009 and not to take any action related to the cabinet box until the matter was considered at the February 17, 2009 meeting. 15, On or about February 11, 2009, in an e-mail to the City Attorney and Plaintiff, Defendant Newman indicated that the plaintiff, as well as a public works employee, could be considered insubordinate should the permit not be forthcoming and AT &T withdraws the offer to move the cabinet box. However, on February 11, 2009, giving in to Defendant Newman's demand, based upon the Defendant Newman's threat of insubordination the permit to move the cabinet box was issued. 16. On or about February 17, 2009, the City Commission at a public meeting discussed the issue related to the moving of the cabinet box. Commissioner Beckman asked Defendant Newman at such meeting if she had spoken to an AT &T representative about the cabinet box. Defendant Newman, at such public meeting, indicated contrary to the facts that she had not. 17. On or about May 1, 2009, at a meeting with Plaintiff and Plaintiff's staff present the Defendant Newman, threatened the plaintiff indicating "that the same thing better be done to the employees involved with this transmission incident (the Public Works 3 Director and the Assistant Public Works Director) as was done to Kathy Vasquez otherwise, I will question your management abilities" Kathy Vasquez had been fired. At the same meeting, Defendant Newman asked for the Plaintiff s personnel file and further threatened the Plaintiff by implying that if the terminations did not occur that "during evaluation, ) am going to evaluate you on management and issues like this." 18. On about May 1, 2009, Defendant Newman made a statement at a meeting directed at the Plaintiff, "The Chief of Police needs to be removed" and also indicated "Major Mills needs to be removed" Claim for Injunctive Relief for InteAerence`PVith Advantageous Contractual Relationships Against Defendant Newman 19. The Defendant City Charter makes it clear under Article V 1, Section 7, Autonomy: "Neither the Commission nor any of its members shall direct or request the appointment of any person to, or his or her removal from office by the City Manager or by any of his or her subordinates, or in any manner take part in the appointment or removal of officers and employees in the administrative service of the City. Except for the purpose of inquiry, the Commission and its members shall deal with the administrative service solely through the City Manager and neither the Commission nor any member thereof sha71 give orders to any subordinates of the City Manager, either publicly or privately. This section shall not apply to officers appointed under Article II, Section 7 of this Charter." 20. The Defendant City Charter also provides among other powers the following powers to the Plaintiff under Article M Section 5. Powers and Duties: "?lie City Manager shall be the chief executive officer and head of the administrative branch of the City government. " E. Direct and supervise the administration of departments, off ces and agencies of the City, except as otherwise provided by this Charter or by law. " 4 21. Section 4.2, page 3, of Plaintiff Contract provides in part: "No Cam. mission member, acting alone and without authorization of the Commission shall direct the City Manager to enter into or terminate any contract or to employ arty person or, to grant or withhold funds to any person, or to instruct arty person under the City Manager's authority to take or refrain from taking any spectfic action. " 22. Defendant Newman violated such Charter provisions and contractual rights by: A. Giving directives to the Plaintiff subordinates related to removal of the AT &T cabinet box and threatening the Plaintiff with insubordination if her directives related to the permit were not followed notwithstanding the fact that the Defendant City indicated no action should be taken concerning the removal of the Cabinet Box. (Paragraphs 8, 9, 10, 11, 12, 13, 14, 15 and 16) B. Giving directions or requesting of the Plaintiff to fire employee subordinates or those in the administrative service who were involved in the transmission incident, and indicating if it were not done it would reflect negatively on the plaintiffs management abilities. (Paragraph 17) C. Giving directions or requesting the Plaintiff to fire employee subordinates or those in the administrative service, inclusive of the Police Chief.and Major Mills Public Works Director and Assistant Public Works Director. (Paragraph 17 and 18) 23. The preamble to the City of South Miami's Charter (section (A) (2)) provides: . "Truth in government. No County or municipal official or employee shall knowingly furnish false information on arty public matter, nor knowingly omit significant facts when giving requested information to members of the public. " 24. Defendant Newman violated such provisions by: 0 �`' A. Misrepresenting at a public meeting the fact that she had not spoken to ,. QD anyone at AT &T related to the cabinet box contrary to the truth that in fact she had.(Paragraph 14) 25. The acts complained of were not done in good faith by Defendant Newman, but were knowingly done to usurp the power of the plaintiff, malign his credibility and target him for ouster. 26. Defendant Newman's conduct is continuing and if not enjoined, will cause the Plaintiff irreparable harm as the Plaintiff s Contract has a term of five (5) years beginning on March 3, 2008 and the Plaintiff anticipated that with satisfactory performance under the Contract, such Contract would be renewed for successive periods. The Plaintiff has a property right in his employment as a result of such Contract. The Plaintiff s advantageous contractual relationship with the Defendant City was and continues to be interfered with by Defendant Newman as to make its performance impossible or more onerous and thus to impair or defeat the value of the rights established by such Contract. 27. The Plaintiff has a clear legal right to the relief requested as the acts complained of not only constitute an interference with the Plaintiffs rights and responsibilities under his Contract, but also constitute a violation of the Defendant City's Ordinances and its Charter. 28. The Plaintiff has no adequate remedy at law in that damages are unable to be calculated as the Plaintiff has not as of this time suffered monetary damages, but fears absent injunctive relief he will so suffer. 29. It would be highly inequitable and unjust to allow Defendant Newman to use her official position with the Defendant City to destroy the property rights of the Plaintiff under the Contract and continue to violate the Defendant City's Charter and the Plaintiff's Contract. 2 T: ? 30, Plaintiff has exhausted all conditions precedent to br'iging this action or that such conditions precedent has been waived. 31. Plaintiff objected to and refused to participate in the demands and conduct of Defendant Newman which were contrary to the Defendant City's Charter and its Ordinances and his Contract and so notified the Defendant City however, the Defendant City took no action to remedy the situation and unless an injunction is issued the conduct of Defendant Newman will continue causing the Plaintiff irreparable harm. 32. Plaintiff is in need of the following temporary and permanent injunctive relief restraining Defendant Newman from: A. Instructing any person under the ' Plaintiff City Manager's authority to take or refrain from taking any specific action; B. Except for the purpose of inquiry, deal with the administrative service, except through the plaintiff City Manager or give any orders to any subordinate of the City Manager, either publicly or privately; C. Requesting the removal from office by the Plaintiff City Manager of any his subordinates or removal of any officers or employees in the administrative service of the Defendant City; D.' Knowingly furnish false information on any public matter, nor knowingly omit significant facts when giving requested information to members of the public. 33. All of the above being required by the Defendant City's Charter and the Plaintiff s Contract. Claim Against City 34. Plaintiff re- alleges the allegations in paragraphs 1 -33 above. 35. Plaintiff objected to and refused to participate in the demands and conduct of Defendant Newman which were contrary to the Defendant City's Charter and its 7 Po so notified-the Defendant City however, the Defendant °� Ordinances and his Contract and City tools no action to remedy the situation and unless an injunction is issued the conduct of Defendant Newman will continue causing the Plaintiff irreparable harm. 36. The Defendant City has been joined as a necessary party as it may have an interest in the subject matter of this litigation. WHEREFORE, the Plaintiff requests the following relief as to the Defendant Newman: That the Court enters an order temporarily and permanently restraining the Defendant Newman from.: A. Instructing any person under the Plaintiff City Manager's authority to take or refrain from taking any specific action; B. Except for the purpose of inquiry, deal with the administrative service, except through the Plaintiff City Manager give any orders to any subordinate of the Plaintiff City Manager, either publicly or privately; C: iZequesting the removal from office by the Plaintiff City Manager of any i his subordinates or removal of any officers or employees in the administrative service of the Defendant City; I D. Knowingly furnish false information on any public matter, nor knowingly omit significant facts when giving requested information to. members of the public. I And further: A. Award the Plaintiff such other relief as is warranted under the facts 'and law. 8 • e fees and costs of this action. B. -.Award the Plaintiff reasonable attorney And as to the Defendant City: A. Award the Plaintiff reasonable attorney fees and costs of this action. B. Award the Plaintiffs such other relief as is warranted under the facts and law. Neil Flaxman, PA. Attorney for Plaintiff f Brickell Bayview Centre, Suite 3100 80 Southwest 8g' Street Miami, Florida 33130 Tel: 305- 810 -2786 Fax: 305- 810 -2824 By: Neil Flaxman, Fsq• Florida Bar No. 025299 i • I 9 I W. AJIBOLA-BALOGUN State of Florida ss: County of Miami Dade BEFORE MB, the undersigned authority, personally appeared W. AJIBOLA BALoGUN, who is personally known to me or produced as id . entification and who by me being first duly sworn, states that he executed the foregoing and that it is true to the best of his knowledge and belief. SWORN TO AND SUBSCRIBED before me this _ day -of June, 2009, NOTARY PUBLIC, State of Florida (NOTARY SEAL) 10 • i i IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI -DADE COUNTY, FLORIDA . W. ARBOLA BALOGUN Plaintiff, Y. VALERIE NEW Y AN, in her Official Capacity as Commissioner and CITY OF SOUTH MIAMI, FLORIDA Defendant, CASE NO: 09- 43364 -CA -25 THE ORIG AL FILED Its THE O IC OF THE CLERK LOC # CIRCUIT & COUNTY COURTS DADE COUNTY, FLORIDA CsI NOTICE OF APPEARANCE OF COUNSEL JUN 3 0 zoos. Jorge L. Pin6n hereby files this appearance as attorney of record for Defendant Valerie Newman. Please direct all future correspondence, pleading, etc., to the undersigned. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been firr-nished by facsimile transmission at 305- 810 -2824 to Neil Flaxman, Esq. at Neil Flaxlnan P.A., Brickell Bayview Centre, Suite 3100, 80 Southwest, 80' Street, Miami, Florida 33130, on June 29, 2009 The Law Office of Jorge L. Pin "off P.A. Attorney for Defendant 9260 Sunset Drive, Ste 118 f Miami, Florida 33173 Telephone: (305)- 273 -3901 Fax: (305)- 273 -390 Jorge hsgui, Flori a ar No: 23226 IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI -DADE COUNTY, FLORIDA GENERAL JURISDICTION DIVISION W. AJIBOLA BALOGUN, Plaintiff, y CASE No. 09 -43364 CA 25 THE OR INAL FILED IN THE FFICE OF TF1E ICLI =RI6 VALERIE NEWMAN in her LOC # Official Capacity as Commissioner, and o oce IT& COUNTY Y. DARTS CITY OF SOUTH MIAMI, FLORIDA, ON Defendants. DEFENDANT VALERIE NEWMAN, AS COMMISSIONER'S MOTION FOR EXTENSION OF TIME • Defendant, VALERIE NEWMAN, in her Official Capacity as Commissioner, by and through the undersigned, filed this, her Motion for Extension ofTime In Which to Respond, pursuant to I.090(b) (1) F.R.C.P. showing: 1. Defendant NEWMAN has been served in the above styled matter. 2. Her response time has not expired. 3. The undersigned has been recently retained and there is insufficient time to respond to the Complaint by Motion or otherwise with the prescribed time parameters and because representation of the Commissioner by the undersigned requires approval of the South Miami City Manager with the concurrence of the South Miami City Attorney. Such approval has not yet occurred. 4. Defendant NEWMAN was served on June 10, 2009. Her response date, inclusive of the mailbox rule is July 5, 2009. The undersigned respectfully requests and additional twenty (20) days from July 6, 2009, in order that the proper response be prepared and served. 5. No harm will befall the parties if this Motion is granted, as the case is in its infancy. If denied, Defendant NEWMAN will suffer an irreparable harm, having been deprived of her opportunity to adequately prepare her first pleading and proceed thoroughly and safely in this matter. 6. Plaintiffs position is unknown. • . . CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the forgoing instrument was sent by U.S. Mail to Neil Flaxma Esiq., Neil Flaxen P.A., 80 SW 8th Street, Suite 3100, Miami, Florida 33130 on RM • • JORON, ESQUIRE Florffa Bar No.: 23226 The Law Office of Jorge L. Pinon, P.A. 9260 Sunset Drive, Suite 118 Miami, Florida 33173 Tel. (305) 273 -3901; Fax (305) 273 -3902 Attorneys for Defendant