97-22399 RESO
RESOLUTION NO.
97-22399
A RESOLUTION OF THE MAYOR AND CITY COMMISSION
OF THE CITY OF MIAMI BEACH, FLORIDA APPROVING
A SETTLEMENT AGREEMENT BETWEEN PHILLIP
HUBER ET UX. AND THE CITY OF MIAMI BEACH ET AL.
AND AUTHORIZING THE EXECUTION OF ANY
NECESSARY DOCUMENTS.
WHEREAS, Philip Huber et ux. have, through their attorney, asserted claims againST tl e
City of Miami Beach et al. ("City") in Philip Huber. et ux v. City of Miami Beach. et aI, in tIe
United States District Court for the Southern District of Florida, Case No. 93-1736-CIV-MOREN(I;
and
WHEREAS, the parties desire to settle the o~tstanding claims; and
WHEREAS, the parties have agreed to the terms and conditions as set forth in the Settleme: It
Agreement attached hereto as Exhibit "A"; and
WHEREAS, Phillip Huber et UX., have agreed to dismiss their action against the City lpC n
full execution of this Agreement, City Commission approval of this Agreement, and court appr :lV, Ll
of this Agreement.
NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CIT I{
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA:
Section 1:
That the City Commission approves the Settlement Agreement attached ( s
Exhibit "A".
Section 2:
That the City Commission hereby authorizes all necessary City personlli~11)
execute the Settlement Agreement documents and consummate the tt: rn s
thereof.
,1997.
PASSED and ADOPTED this 21st day of
ATTEST:
'i'
If"~
~b~X fauk
CITY CLERI(
APPROVED AS 10
FORM & LANGUAG,IE
& FOR EXECUTlOf\,
DJT\kw(F:\A TTO\ TURN\RESOS\HUBERSTL.RES)
IlJ;! 1JJ1/l./ l ~0.lf/.:).
~ C:ICJt8
SETTLEMENT AGREEMENT AND GENERAL RELEASE
This Settlement Agreement and General Release ("Agreement") is entered into by (nd
between PHILLIP G. HUBER (HUBER), MARY LOUISE HUBER (collectively referred tc as
the PLAINTIFFS) and THE CITY OF MIAMI BEACH (CITY).
WHEREAS, HUBER has filed a legal action against the CITY and ROGER CARLTC N,
PETER LIU, DEAN MIELKE and EDDIE COX in their respective former official capacities ;.nd
their individual capacities (collectively referred to as the CITY DEFENDANTS) seeking dama~es
and other relief, sub nom Phillip G. Huber r et ux v. City of Miami Beach et al., U. S. 0 stIict
Court for the Southern District of Florida, Case No. 93-1736-Civ-Moreno; and
WHEREAS, the PLAINTIFFS have also asserted claims for damages and other re ie: m
Phillip G. Huber. et ux v. City of Miami Beach. et aI., Case No. 93-1736-Civ-Moreno agailst
Defendants Casey Conwell, Dennis Ward, Paul Lupien, Dan Pinder, and the Fraternal Order of
Police, William Nichols Lodge No.8; and
WHEREAS, all DEFENDANTS have denied PLAINTIFFS' claims; and,
WHEREAS, the parties prefer to enter into a compromise in order to avoid he
uncertainties and expense of further litigation.
NOW, THEREFORE, in consideration of all mutual promises contained herein, IS
agreed as follows:
1. Dismissal of Action With Prejudice. Simultaneously with the execution eft lis
Agreement, the PLAINTIFFS will dismiss their lawsuit with prejudice as to.all DEFENDA!\ TS
by directing their attorney to execute and tender to CITY DEFENDANTS' counsel the attached
Joint Stipulation for Dismissal With Prejudice, which shall be held in escrow by ::::ITY
DEFENDANTS' counsel until payment is made to HUBER as specified in paragraph :, :..nd
thereafter filed with the Court.
f~
~
PGH
MLH
Page 1 of 7
}ft
2. Waiver of All Rights and Claims. In consideration of the sum of money reoer"ed
to in paragraph numbered 3 of this Agreement, the PLAINTIFFS knowingly and voluntarily We ive
any and all known and unknown rights and claims which they have or may have against all of the
DEFENDANTS, including but not limited to any claim that was or could have been asserte( in
Phillip G. Huber et ux v. City of Miami Beach. et aI., Case No. 93-1736-Civ-Moreno, a~; ",ell
as any other claim(s) under the First and Fourteenth Amendments to the United StHes
Constitution, 42 U.S.c., Sections 1981-1988 of the United States Code, Title VII of the Civil
Rights Act of 1964, as amended by the Civil Rights Act 1990, Florida's Civil Rights Act, he
Florida Constitution, Florida's Whistle-blower's Act, Florida's Sunshine Law, HUHETs
employment contract, any other federal, state or local laws prohibiting discriminati;m in
employment, any public policy, contract, or the common law, including any tort claims Ie..:.,
negligent or intentional infliction of emotional distress; negligent retention, supervision or
training; defamation; wrongful termination, conspiracy, malpractice), whether based on comm)n
law or otherwise, which have arisen or may arise from the beginning of the world until tl)d:..y.
This waiver also bars any claim or demand for costs, fees, or other expenses, including attorne ,'s
fees incurred in connection with the above-referenced action. The listing of claims in this sectiJn
is intended to be illustrative rather than exhaustive. Thus, the PLAINTIFFS understand and 19l ee
that this Agreement constitutes a full and final bar to any and all claims of any type that they n( w
have against any of the DEFENDANTS.
The PLAINTIFFS hereby release, acquit, and forever discharge ROGER CARLTO,{,
EDDIE COX, DEAN MIELKE and PETER LIU, in their respective former official capacitie:; aId
their individual capacities, and the CITY, its former and current City Managers, its former aId
current Department Heads, its former and current City Commission members, as well as eacb aId
everyone of the CITY's former and current officers, agents, attorneys (including all curren: aId
prior members, employees, and agents of both the Miami Beach City Attorney's Office and tIe
M
PGH
of Muller, Mintz, Kornreich, Caldwell, Casey, Crosland & Bramnick, P.A.),
~~I
MLH
Page 2 of 7
-Jhi.~.
F'1T
representatives, employees and officials (whether elected or appointed) -- in both their oJi< ial
capacities and as individuals -- and their heirs, executors, administrators, successors, and a;si~ns
and all other persons, partnerships, fIrms or corporations, of and from any and all actions, causes
of action, damages or demands of whatever name or nature arising out of any and all incidents or
matters which have arisen or may arise from the beginning of time to the date the PLAINTIF FS
execute this Agreement.
The PLAINTIFFS also hereby release, acquit, and forever discharge CASEY CONWEI L,
DAN PINDER, DENNIS WARD, PAUL LUPIEN, and the FRATERNAL ORDER OF POLK E,
WILLIAM NICHOLS LODGE NO.8, and all of their agents, attorneys, heirs, execlltcrs,
administrators, successors, and assigns and all other persons, partnerships, firms or corpora tic ns,
of and from any and all actions, causes of action, damages or demands of whatever name or
nature arising out of any and all incidents or matters which have arisen or may arise fro n he
beginning of time to the date the PLAINTIFFS execute this Agreement.
This waiver and release covers any and all claims for personal injury, emotional, m~nt 11,
and physical pain and suffering, loss of earnings and earning capacity; loss of support, end
services; and all hospital, medicare, social security liens and attorney's fees' liens, which, if a ny
exist, will be satisfied out of the proceeds of this Agreement.
3. Consideration. In consideration for dismissal by the PLAINTIFFS of, and th:ir
waiver and release of all claims against all DEFENDANTS, the CITY will pay HUBER a lump
sum payment in the amount of Three Hundred Thousand Dollars ($300,000.00) via checkna ie
payable to Geller. Geller & Garfinkel. P.A. Trust Account. The CITY will deliver the check to
the Law Offices of Geller, Geller & Garfinkel, P .A., within thirty (30) days of the executionJf
this Agreement by the Plaintiffs and the CITY.
4. Additional Consideration. For purposes of this Agreement, HUBER shdl Je
deemed to have served the full term of his employment contract with the CITY from Ma:l 14,
I~O ~rough and including May 13, 1995, without any break in creditable service and shall 7Je
W-=~ ~
PGH l\t1LH Page 3 of 7 ~IT "{
deemed a member of the Unclassified Employees and Elected Officials Retirement Systt m
(System) during this entire time period. The CITY shall purchase all prior service time elrr ed
by HUBER from May 14, 1990, through and including May 13, 1995, which would be requir~d
to make him eligible for the pension benefits that he would have been entitled as of May 13, 1 955.
The amount that the CITY shall contribute to the System will be equivalent to HUBEI:.'s
contribution to the System from May 14, 1990, through and including May 13, 1995, p:us
applicable interest. HUBER agrees that the amount that the CITY shall contribute is $76,804.(,3,
which includes interest through May 29, 1997. Further, by entering into this Agreement, HeBER
agrees that he will not exercise his right to the benefits provided in Section 5.07(a) of Cry of
Miami Beach Ordinance No. 88-2603, as amended, because, inter alia, he previously recei'ie( a
benefit of $40,231.94 under said Section and the City, pursuant to this paragraph, is makiIlg ill
of his required contributions, plus interest. HUBER further agrees that he will not apply or
employment with the CITY in the future. In addition, the CITY agrees to place in HUBEF 's
personnel file a copy of the letter attached to this Agreement as Exhibit A.
5. AdeQJ.Iate Consideration. The PLAINTIFFS agree that payment to HUBE R:>f
the money set forth in paragraph numbered 3 and the benefits set forth in paragraph numbe:e( 4
of this Agreement constitutes adequate and ample consideration for the rights and claims they (re
waiving under this Agreement, to which they would not otherwise be entitled but for tlLis
settlement and for the obligations imposed upon them by virtue of this Agreement.
6. Time to Consider Signing Agreement. The PLAINTIFFS acknowledge that th:y
have been given a reasonable period of time to decide whether to sign this Agreement.
7. Effective Date. This Agreement shall become effective immediately upon appJ'O\ al
by the elected City Commission of the City of Miami Beach, Florida, and the subseqUE nt
execution of this Agreement by the City Manager of the City of Miami Beach, Florida.
8. Non-Admission of Wrongdoing. The PLAINTIFFS agree that neither t1 is
~t nor~z:.f any consideration under this Agreement shall be construed ~I
PGH MLH Page 4 of7 -Aff'{
admission by any of the DEFENDANTS of any wrongdoing, liability or unlawful condlet. To
the contrary, the PLAINTIFFS agree that the DEFENDANTS specifically deny that they 0] any
of them caused any legal harm to or are in any way liable to the PLAINTIFFS.
9. Governing Law and Interpretation. This Agreement shall be governed and
construed in accordance with the laws of the State of Florida.
10. Entire Agreement. This Agreement sets forth the entire agreement betweeL the
parties and shall supersede any and all prior agreements or understandings, whether wr ittt n or
oral, between the parties, except as otherwise specified in this Agreement. The PLAU<T FFS
acknowledge that they have not relied on any representations, promises, or agreements of anydnd
made to them in connection with their decision to sign this Agreement except for those set. arth
in this Agreement.
11. Encouragement to Consult Attorney. The PLAINTIFFS acknowledge thlt hey
have consulted their attorney before signing this Agreement.
12. Amendment. This Agreement may not be amended except by written agrl~enent
signed by the PLAINTIFFS and the CITY.
13. Headings. Section headings are used herein for convenience of reference only and
-
shall not affect the meaning of any provisions of this Agreement.
HAVING ELECTED TO EXECUTE THIS AGREEMENT AND TO FULFIL:" '~HE
PROMISES SET FORTH HEREIN, THE PLAINTIFFS FREELY AND KNOWINGLY, PND
AFTER DUE REFLECTION, ENTER INTO THIS AGREEMENT INTENDING TO \VAJVE,
SETTLE AND RELEASE ALL CLAIMS THEY HAVE OR MIGHT NOW HAVE AGAI~ST
ANY OF THE DEFENDANTS AND ANY OTHER PERSON OR ENTITY IDENTIFIEI J IN
PARAGRAPH NUMBERED 2 HEREIN, FROM THE BEGINNING OF TIME TO "HE
EFFECTIVE DATE OF THIS AGREEMENT.
#
C7?t?f?j' .
iYfLH
Page 5 of 7
:Iir
IN WITNESS WHEREOF, the parties hereto knowingly and voluntarily executed his
Agreement as of the date set forth below:
THE CITY OF MIAMI BEACH
By:
1 Garcia Pedrosa
Ity Manager
5h8fr9
/ /
STATE OF FLORIDA
COUNTY OF DADE
Date:
The foregoing instrument was executed
before me this ~ day of mc...1 ,
1997, by ~ 6co;e,"(.- Prc~S",- ,who is
personally known to me. [OF- 'liRe has-
p.rOOHeed as identification]
~:b.
Notar Public
State of Florida at Large
Print Name of Notary
My Commission Expires:
i;'~'?-.\:'~~~~':. Ruth Rubi
';' .'.~ ,*% MY COMMISSION # CC624373 EXPIRES
:~:';...~'i/ April 25. 2001
;..,..-;.., 80NOEO THRU TROY FAIN IN5URANCE.INC
/
../
Date:
.5zz-1I
STATE OF FLORIDA
COUNTY OF DADE
The foregoing instrument was ext:cu led
before me this ~ day of ~!:l--'
1997, by Phillip G. Huber, ~&i
personally known by me [or whl) las
produced _ as
identification] and who took an oath
~~ A"..~ l1JJ.aLJ~
Notary Public
State of ~\c\""\ do.... at Large
G.\e~~ (' o..,~\Q \ \ \-\~Qci\""\,;.t..-
Print Name of Notary
My Commission Expires:
; s < < < < < < < < (< (( < (( (< < < < < < < (( <<( (( (( (( (( (( (( ((( (( (( ((<$'
;~ ",,,~?v "ilc>( Glenda Caswell Head..'lck :s:
)~ ., ~~~ ~ Notary Public, State of Florida .>:
:~< ".~>:~~.'1Q.?' Ccn:mission No. CC 307153 :>.
~\ " OF ,1,0 My Commission Expiws 8/9/97 .~
;IS nOlU1~d Throu~jl Fla. NOUlt)' S<:rt'i~ I,( H\,nllMlg Co. :~.
').>)) ),')))) ,')) ))))))))))) )))))))))))))))))))))))))) ))'
Page 6 of 7
IN WITNESS WHEREOF, the parties hereto knowingly and voluntarily executed tlis
Agreement as of the date set forth below:
MARY LOmSE HUBER
By: VtJ~~
Mary Lou Huber
5j;d /91'
I /
STATE OF FLORIDA
COUNTY OF DADE
Date:
The foregoing instrument w~ted
before me this J/:!. f of ,
1997, by 2r1 'JJM ./ , w 0 is
personally ~wn to - e [ef" whu -has
I'rodtIccd as identifll.i:lliun']
and 0 took an oath.
My Commission Expires:
:;~_'r_,",_ ::'.';"'_'~_-=-;;:-;"-;:'.-::~~:::__~
~'~A:f.""i';~,~-- PE,J'.:/ t ,kJi".,~:"
g./ .~*~ MY GOMMIBS:O~.J 1:: r'I'~ "~::;/..:":
.. . . ~ iT !.JOJ .,J" '.''-'.'-'~
~~;~.._....~~f 8C~~RES: rcbruarj 2B, 2CC;J ,i<
"',.9f"r:-.," Bondad T:;nJ Not:'.rj Public U;JdelwritGrd ii
Page 7 of7
OFFICE OF THE CITY ATTORNEY
~ tjJ/domi 7kuA
F
L
o
R
o
A
MVRRA Y H. DUBBIN
City Attorney
Telephone:
Telecopy:
(30$) 673-7470
(30 :!i) 673-7002
COMMISSION MEMORANDUM NO. ~
DATE: MAY 21,1997
TO:
MA YOR SEYMOUR GELBER
MEMBERS OF THE CITY COMMISSION
MURRAY DUBBIN - ^ ~,.Il/
CITY ATTORNEY ~ \f\\)\JW'''
JOSE GARCIA-PEDROSA
CITY MANAGER
FROM:
SUBJECT: Potential Settlement I Philip Huber. et ux v. City of Miami Beach. et ai, in th,e
United States District Court for the Southern District of Florida, Case No. 9:-
1736-Civ-Moreno
A lawsuit was filed in September of 1993 by Phillip Huber and his wife claiming, inter lli Il,
breach of his employment contract with the City and various constitutional and statutory violaticm:.
A resolution of these claims may be forthcoming in the form of a settlement agreement betweer. ti,e
parties. In the event such an agreement is reached which would be in the best interest of the <:::i1 y
to resolve this matter without further litigation, exposure to risk, time, and expense, it will t e
submitted for City Commission consideration with the recommendation that the attached Resoh.:tic n
be adopted approving the execution of the agreement.
Dmkw
F:IA lTOlTURNlRESOSIHUBERSTLMEM
Attachment
Date
Item~JF
5-2l:31
Agenda
1700 Convention Center Drive - Fourth Floor - Miami Beach, Florida 33139