HomeMy WebLinkAboutR-85-00171"�11 A
J-84-1221
12/12/84
RESOLUTION NO. 85-1 .
A RESOLUTION AUTHORIZING THE DIRECTOR OF
FINANCE TO PAY TO S.R. STERBENZ THE SUM OF
SEVENTY-ONE THOUSAND DOLLARS ($71,000.00) IN
ACCORDANCE WITH THE SCHEDULE AS SET FORTH IN
THE ATTACHED SETTLEMENT AGREEMENT. SAID
PAYMENTS TO BE MADE IN FULL AND COMPLETE
SETTLEMENT OF ALL CLAIMS AND DEMANDS AGAINST
THE CITY OF MIAMI AND THE MIAMI CITY GENERAL
EMPLOYEES' RETIREMENT PLAN, AND AS
CONSIDERATION FOR THE DISMISSAL OF THE CASE
OF S.R. STERBENZ VS. CITY OF MIAMI, ETC., ET
j AL, CIRCUIT COURT CASE NO. 78-16901 (03).
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WHEREAS, Plaintiff, S.R. STERBENZ, filed a claim through his
i attorney, Steven Schultz, to recover from the City of Miami and
the Miami City General Employees' Retirement Plan, certain salary
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increases and other emoluments which allegedly should have been
paid to him as an Assistant City Attorney beginning in 1973 and
continuing through his retirement in 1978; and
WHEREAS, on April 9, 1979, Circuit Court Judge Stuart A.
Simons entered a Partial Summary Judgment as to liability in
favor of STERBENZ, but left open as an issue only the question of
applicable Statute of Limitations; said Order required the City
of Miami to calculate the salary level which STERBENZ should have
obtained: the sums due him range from $53,973 to $67,700.44;
according to the City's calculations of the salary which STERBENZ
should have obtained had the increases been paid (the former
figure is based upon a four year Statute of Limitations being
applicable and the latter on no Statute of Limitations being
applicable); the City's pension office has calculated the pension
that STERBENZ should have received based upon the salary levels
which allegedly should have been paid, and the alleged short fall
( since October 1978 through November 1984 is $50,742.09;
NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY
OF MIAMI, FLORIDA:
Section 1: The Director of Finance is hereby authorized
to pay to S.R. STERBENZ the sum of Seventy One Thousand Dollars
j; ($71,000.00) in accordance with the schedule as set forth in the
1 CITY COMMISSION
MEETING OF {
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attached Settlement Agreement. Said payments to be made in full
and complete settlement of all claims and demands against the
City of Miami and the Miami City General Employees' Retirement
Plan and as consideration for the dismissal of the case of S.R.
STERBENZ vs. CITY OF MIAMI, ETC. ET AL, Circuit Court Case No.
78-16901 (03).
PASSED AND ADOPTED this Ipth day of _ January ► 1985•
ATTEST:
RAL G. ONGIE
City Clerk
PREPARED AND/APPRDVPD W4:
ra
V a\ i a �
sistant 'ty Attorney
Maurice A. Ferre
MAURICE A. FERRE, Mayor
APPROVED AS -0) FORM AND CORRECTNESS:
City Attorney
LMF/wpc/ab/154
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85-17
0
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S. R. STERBENZ,
Plaintiff,
v
CITY OF MIAMI, etc.
et al.,
Defendants.
IN THE CIRCUIT COURT OF THE
llth JUDICIAL CIRCUIT, IN AND
FOR DADE COUNTY, FLORIDA
GENERAL JURISDICTION DIVISION
CASE no. 78-16901 (03)
SETTLEMENT AGREEMENT
(Fla. Bar
THIS AGREEMENT, made and entered into as shown on the
signature page, is intended to settle all matters in conflict in
Case No. 78-16901 (03), Circuit Court of the Eleventh Judicial
Circuit in and for Dade County, Florida, General Jurisdiction
Division. The settlement is based upon the following facts:
1. S.R. STERBENZ became employed by the City of Miami
in January, 1960 as a classified Assistant City Attorney.
2. S.R. STERBENZ retired from his position as an
Assistant City Attorney for the City of Miami on October 17,
1978.
3. S.R. STERBENZ was a member of the Miami City General
Employees' Retirement Plan, a pension fund authorized by and
incorporated in the Code of the City of Miami, Florida as Section
40-225 et seq.
4. During the last three to four years of STERBENZ'
employment as an Assistant City Attorney, he protested the fact
that he had not received certain salary increases and other
emoluments which allegedly should have been paid to him beginning
in 1973 and continuing through his retirement in 1978. STERBENZ,
of course, claims that he is entitled to each and every one of
these benefits.
5. The within lawsuit was brought by STERBENZ for the
purposes of obtaining a salary adjustment, and other emoluments
including payment of Bar dues, sick pay and vacation pay. The
lawsuit also sought an adjustment in his pension, since the monthly
amount paid to members after retirement is based upon the salary
paid during the last two years of employment or the highest two
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years of salary, whichever is greater.
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6. On April 9, 1979, Circuit Court Judge Stuart A. Simons
entered a Partial Summary Judgment as to liability in favor of
the Plaintiff and against the Defendant, City of Miami..., a
copy of which is attached hereto and made a part hereof as
Exhibit A. The said Summary Judgment found in favor of the
Plaintiff on the liability issue and left open as an issue only
the question of the applicable Statute of Limitations. The
document also required the City of Miami to calculate the
salary level which STERBENZ should have obtained. The sums due
STERBENZ range from Fifty Three Thousand Nine Hundred Seventy
Three Dollars and Seventy -Two Cents ($53,973.72) to Sixty Seven
Thousand Seven Hundred Dollars and Forty Four Cents ($67,700.44)p
according to the City's calculations of the salary which STERBENZ
should have obtained had the increases been paid. The former
figure is based upon a four (4) year Statute of Limitations being
applicable and the latter upon no Statute of Limitations being
applicable. The City's pension office has calculated the pension
that STERBENZ should have received based upon the salary levels
which allegedly should have been paid. The alleged short fall
in payments since October 1978 through November 1984 is Fifty
Thousand Seven Hundred Forty Two Dollars and Nine Cents ($50,742.09)
7. STERBENZ will, as a part of this settlement, execute
a General Release as to any and all claims alleged in his
Complaint and all other matters except as set forth in this
Settlement Agreement. This Agreement shall then be proposed to
the City Commission as a resolution proposed by the Law Department
and agreed to by the Plan Retirement Board. This Agreement shall
not be final until such time as the City Commission shall have
passed a resolution granting its approval and the Court case shall
have been dismissed with prejudice by a proper Order of the Court.
83w-17
NOW, THEREFORE, in consideration of the foregoing and
of the promises and obligations herein set forth, it is agreed
'I that:
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1. In regard to salary arrearages, the Defendant, CITY
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OF MIAMI, agrees to pay the Plaintiff Forty Thousand Dollars
($40,000.00) to be paid as follows:
A. Within thirty (30) days after the City Commission
approval is given, the sum of Ten Thousand Dollars ($10,000.00)
shall be paid by the Defendant to the Plaintiff through his
attorney; thereafter, and commencing on December 1, 1987, the
Defendant shall pay the remaining Thirty Thousand Dollars
($30,000.00) at the rate of Five Thousand Dollars ($5,000.00)
per year payable in monthly increments of Four Hundred and
Sixteen Dollars and Sixty Six Cents ($416.66) per month for
a period of Seventy Two months (72), said payments to be
guaranteed to the Plaintiff. (Final payment November 1993).
The City may choose to purchase an appropriate investment to
provide these payments.
2. With regard to the issues concerning the payment of
pension arrearages, the Miami City General Employee's Retirement
through his attorney
Plan agrees to pay Plaintiff/the sum of Thirty One Thousand
Dollars ($31,000.00) prior to January 30, 1985. This settlement
is in lieu of all monies owed STERBENZ and all monies owed by
STERBENZ as his contribution to the Miami City General Employees'
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Retirement Plan as a consequence of this settlement.
3. Beginning in December 1984, the pension to be paid to
STERBENZ by the Miami City General Employees' Retirement'Plan
shall be increased from One Thousand Seven Hundred and Sixty Six
Dollars and Fifty Six Cents ($1,765.56) to Two Thousand Four
Hundred Fifty Six Dollars and Eight Cents ($2,456.08) per month.
4 4. STERBENZ shall execute a General Release, a copy of
which is attached hereto as Exhibit B as to all matters alleged
in the Complaint and as to any and all other claims which STERBENZ
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i may have against the City or any other department of the City.
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5. This Agreement shall be submitted to the Court for
l' the purposes of enforcement, but the Court shall otherwise enter
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3� a Voluntary Dismissal with Prejudice as to all matters alleged
j in the within lawsuit.
6. This Agreement includes all matters and claims, in-
cluding attorney's fees and costs of suit to which the Plaintiff
i may otherwise be entitled. Such matters shall be foreclosed and
otherwise waived and released by the Plaintiff as a part of this
Settlement Agreement.
7. Plaintiff, STERBENZ, shall execute this Agreement and
it shall then be proposed to the Retirement Board of the Miami
City General Employees' Retirement Plan for approval. The Board
shall pass an appropriate resolution and the Settlement Agreement
shall thereafter be proposed to the City of Miami Commission,
which shall also pass an appropriate resolution if they choose
to accept its provisions. This Agreement shall not be considered
to be binding or in any way final until such time as it shall
have been approved by the City of Miami Commission.
IN WITNESS THEREOF, we have set our hands and seals to
this instrument signifying our approval and acceptance of the
matters stated therein.
7A 4mm"GIMM,
5 A. 10 �z � - I , I I , I - A
STEVEN A. SCHULTZ, P.A.
1200 Republic National Bank
150 S.E. 2nd Avenue
Miami, Florida 33131
(305) 358-2026
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... ..........�.., .r.,.
Attorney for Plaintif
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LUCIA A. DOUGHERTY, CITY ATTORNEY
LEON FIRTEL, ASST. CITY ATT0Pd3EY
169 s Flagler tree , Suite 1101
Mia lorida 3131 n
(30 ) 5 9-670 , //
torney or Defen an s
SS"'!17
•. GOUNTYt FLORtDA -�-_--
. 7%^ITERAL XU11I3D i., .0N DIVISION
P.
LAW CASE NO. 78-16901 (03 )
S. R. STERBFNZ, )
Plaintiff, ) PARTIAL SU14MARY JUDGMENT r
j AT TO LIABILITY IN FAVOR !
1ITY OF MIAMI, eta., et al.,
Defendants. )
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OF THE PLAINTIFF AND
AGAINST THE DEFENDANTS
S ITY OF MUMI, AS TO
COUNTS I AND II OF PLAIN•
TIFF►S FIRST CAUSE OF ACTION
Hearings on plaintiff's JAhuary 9, 1979, motion for partial
summary judgment as to liability wage held on January 30, and
t-larch 28, 1979. An order dated�January 31, 1979, was'entered
regarding the January 30, 1979, hearing and this January 31,
1979, order is incorporated by reference as a part of this
partial summary judgment as to liability.
This is a partial sumzaary judgment as to the liability of
the defendant, City of Miami (hereinafter "the City' ), as to
counts I and II of plaintiff's first cause of action.
It is the finding and determination of the court that the
plaintiff was in the classified service of the City before the
1972 charter amendment (involving unclassified assistant city
attorneys, hereinafter "the amendment"), that he remained in
the classified service of the City as an assistant city attorney
after the amendment, and that he could not be transferred from
such stetus as a classified assistant city attorney to the posi-
tion of an unclassified assistant city attorney as a result of
said amendment,
It is further the finding and determination of the courts
specifically as to count I, that as of January 11, 1973, the
plaintiff was entitled to be in the step of the assistant city
attorney salary range (adopted by the City Commission by'Reso-
lutions Nola. 73-226 and 73-235 for the unclassified assistant
city attorneys, and approved thereafter by the city manager
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85-1'7
for the clssaifi*d assistant city attornsys)flpt reflected
his length of service as an assistant city attorney with the
City, to -watt 12 years plus his one step ten year longevity
pay increase.
It is further the finding and determination of the court&
specifically as to count II, that the city attorney did not
have the authority to arbitrarily deny the plaintiff annual
step increases on his anniversary date of December 22nd of
each year commencing on December 224 1973i and continuing
on December 224of each year,through.the remaining steps
of the aforementioned assistant city attorney salary range
and that the plaintiff was entitled to xhese annual.step in -
so ,
creases on each of these eizn;Sereary dates.
Accordingly, the January V 1979,' motion of the plaintiff
for a partial summary judgment as to liability in.favor of the
plaintiff and against the City as to counts I and II of the
plaintiff's first cause of action should be granted, the
pleadings, the papers supporting said motion, and the memo-
randums of law (and material contained therein or attached
thereto) demonstrating, and it being the finding and determi-
nation of the court, that there is no genuine issue as to any
material feat an-i that the plaintiff is entitled to a judgment
as a matter of law as to the liability of the City as to said
counts I and no
The determination as to the actual dollar amount of the
liability of the City appears to be a matter or accounting
that can be accomplished by a special master (a certified
public accountant) appointed by the court for this purposes or,
as plaintiff suggests, by interro-atories directed to the City.
Plaintiff has already commenced an interrogatory method of .
establishing the monetary amount of the liability of the City,
and, accordingly, this method will be allowed to continue un-
less it should appear that some other method such as the
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85--1'7
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the olsasified assistant city attorneys) .1pt refloated
length of service as an assistant city attorney with the
City, to -wits 12 years plug his one step ten year longevity
pay increase.
It is Further the finding and determination of the courts
specifically as to count I1, that the city attorney did not
have the authority to arbitrarily deny the plaintiff annual
step increases on his anniversary date of December 22nd of
each year commencing on December 220 1973; and continuing
on December 224of each year ,through .the remaining steps
of the aforementioned assistant city attorney salary range
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and that the plaintiff fees entitled to these annual.step in-
creases on each of these ehn;verearj dates.
A000rd ingly, the January 9,' 1979,* mot ion of the plaintiff
for a partial summary judgment as to liability in.favor of the
plaintiff and against the City as to counts I and II of the
plaintiff's first cause of action should be granted, the
pleadings, the papers supporting said motion, and the memo-
randums of law (and material contained therein or attached
thereto) demonstrating, and it being the finding and determi-
nation of the court, that there is no genuine issue as to any
material fact and that the plaintiff is entitled to a judgment
as a matter of law an to the liability of the City as to said
counts I and IIe
The determination as to the actual dollar amount of the
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liability or the City appears to be a matter of accounting
that can be accomplished by a special master (a certified
public accountant) appointed by the court for this purpose, or,
as plaintiff suggests, by interrogatories directed to the City.
Plaintiff has already commenced an interrogatory method of
establishing the monetary amount of the liability of the City,
and, accordingly, this method will be allowed to continue un.
less it should appear that some other method such a8 the
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85-1'7
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pointment or a or, tal mester, or an order r -utring the •
City to make the necessary calculations appears to be a
more expeditious and desirable method of arriving at the
amount of this liability.
Aocordingly, it is
ORD.,.RED AND ADJUDGED, as follows:
1. The January 9, 1979, motion of the plaintiff for a
partial summary judgment as to the liability of the defen-
dant, City of Miami, as to counts I and II of the plaintiff's
f irst cause of action is heret?y granttd, The January •31,
1979, order entered by this court is Znoorporated by refer-.
once as a part of this partial summary .judgment •as to 'liability•
2. Judgment is hereby .p$twed.*in favor of 'the plaintiff
and against the defendant, City'of Miami, for, and said de -
fondant is ordered to pay the plaintiff, the difference in
salary he actually received since January 11, 1973, and the
salary he should have received because of his entitlement
to be placed in the step of the assistant city attorney range
(adopted by City Commission Resolution Nola. 73-226 and 73-235
for unclassified assistant city attorneys and approved there-
after by the city manager for the classified assistant city
attorneys) that reflected his length of service as an assist -
city attorney
ant/with the City, to -wit: 12 years plus his one step ten
year longevity increase.
3. Judgment is hereby entered in favor of the plaintiff
and against the defendant, City of Miami, for, and said defendant
is ordered to pay the plaintiff, the difference between the
salary he actually received and the salary he should have re-
ceived since December 229 1973, because of his entitlement to
one step annual salary inoreseen on his anniversary dati of.
December 22nd of each year commencing on December 22, 1973i
and continuing each year through tlhe remaining steps of the
30
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atore4antioned age tant c ity attorney llalery j a•.�::�
4* In additit... zo the above, judgment IF -areby entered
in favor of the plaintiff and against the defendant, City of
:Miami, for, and said defendant is ordered to pay the plaintif,4
interest,at the rate allowed by law, on the amounta, and ad
of the dates said amounts were, due the plaintiff as ordered
in pnra;rephs 2. and 3., above.
5. The plaintiff having indicated the commenoement of
a discovery -interrogatory method of establishing the amounts
of the liability of the defendant, Cipy, of Miami, for -the
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amounts due him under psragrapha 2., 3., and 4., above$ a
method involving the appointment of .a special mester"(a certi-
fied public accountant) or'aq,'ordbr requiring the City to make
the necessary calculations to arrive at the amount of this
liability wall not be ordered at this time.
6. The plaintiff is entitled to his costs expended in
this behalf.
7. The court reserves ruling as to the other matters
zontained in !%la:ntiflls January 9, 1979, motion for a par.
tial summary judgment as to liability until a later time.
DON; ►-D ORD7RED at ;,iemi, Dade County, Florida this
day of April, 1979.
STUART M. SIMONS
STUART. SIMO S,
CIRCUIT JUDGE.
1�.
85-17
EXHIBIT "B"
GENERAL RELEASE
KNOW ALL MEN BY THESE PRESENTS, that the undersigned,
S.R. STERBENZ, residing at 5860 S.W. 85 Street
in the City of Miami , County of a e ,
State of Florida ( ereinafter called "the un ersigne wh ch
shall include both genders, both singular and plural, the heirs,
personal representatives, successors or assigns of the under-
signed), in consideration of the matters expressed in the Agree-
ment to which this Release is attached, received from the CITY
OF MIAMI, a municipal corporation in and of the State of Florida
(hereinafter called "the City"), and other valuable considera-
tions, does hereby unconditionally release, acquit, exonerate and
forever discharge the said City, its agents and employees and the
Miami City General Employees Retirement Plan from any and all
claims, demands, accounts, sums of money, torts, trespasses,
causes of action or rights of action, whether at law or in
equity, which the undersigned may have had, now has or hereafter
may claim to have against said City, its agents and employees,
and the Miami City General Employees Retirement Plan from the
beginning of time to the date of this instrument on account of
that certain lawsuit filed in Circuit Court of the Eleventh
Judicial Circuit, in and for Dade County, Florida, General
Jurisdiction Division, as Case No. 78-16901 (03). The total
agreement and only remaining claim of the undersigned shall be as
expressed in the Settlement Agreement to which this General
Release is attached.
IT IS FURTHER understood and agreed that this settlement is
the compromise of a doubtful and disputed claim and the payment
is not to be construed as an admission of liability. r
1984. WITNESS MY HAND and seal this _� day of�„�
STATE OF FLORIDA)
SS:
COUNTY OF DADE )
SWOR TO AND SUBSCRIBE
—ecr. , 1984.
SEAL)
D
BEFORE ME THIS day of
Notary Pu is
State of Florida at I;rqe
My Commission expires:
tJatar,� Put!io Sts:o cf F:o;'�:; La-oe
My Commiscicn
85--1 I
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` IN THE CIRCUIT COURT OF THE Ilth
i
JUDICIAL CIRCUIT, IN AND FOR
DADE COUNTY, FLORIDA
GENERAL JURISDICTION DIVISION
CASE NO. 78-16901 (03)
S.R. STERBENZ,
Plaintiff,
V. 1
CITY OF MIAMI, etc., et al., )
Defendants. )
JOINT STIPULATION FOR ENTRY OF
ORDER OF DISMISSAL
Plaintiff, by and through his undersigned attorney,
and Defendant, by and through its undersigned attorney, file
this their Joint Stipulation for Entry of an Order of Dismissal
with prejudice, and in support hereof, state that all matters
involved in this litigation have been amicably resolved as more
fully set forth below:
1. The parties have heretofore entered into that
certain "Settlement Agreement", dated December 5, 1984, a true
and correct copy of which has been filed concurrently herewith
(hereinafter the "Settlement Agreement"). The terms and
conditions of said Settlement Agreement are incorporated herein
by this reference.
2. The parties agree to be bound by the terms and
conditions of said Settlement Agreement.
3. This action shall be deemed dismissed, with
prejudice, by Plaintiff upon the satisfactory performance of
the Defendant of all of its obligations set forth under the
Settlement Agreement.
4. It is understood by all of the parties hereto
that the appropriate agencies of the Defendant, CITY OF MIAMI,
must approve the settlement as set forth herein. It shall be
conclusively presumed that upon the execution hereof by the
authorized representative of the CITY OF MIAMI, the appropriate
agencies of the CITY OF MIAMI have given their assent to this
settlement.
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5. Each party shall bear its respective attorneys'
fees and costs connected with this litigation.
DATED this day of
a.
STEVEN A. SCHULTZ, P.A.
1200 Republic National Bank Bldg.
150 S.E. Second Avenue
Miami, Florida 33131
(305) 358-2026
STEVEN A. SCHULTZ, E
Attorney for Plai,i f
December ; 1984.
LUCIA A. DOUGHERTY, CITY ATTORNEY
LEON M. FIRTEL, ASST. CITY ATTORNEY
169 East Flagler Street, Ste. 1101
Miami, Florida 33131
(305) 579-6700
LEON M. FIRTEL, ASST. CITY ATTORNEY
Attorney for Defendants
ORDER OF DISMISSAL
THIS CAUSE came on to be heard upon the above -captioned
Joint Stipulation for Entry of Order of Dismissal, and the Court
being fully advised of the agreement of counsel for the respective
parties and their respective clients and being otherwise fully
advised in the premises, it is
ORDERED AND ADJUDGED, as follows:
1. The foregoing Joint Stipulation and Settlement
Agreement is hereby approved and adopted as the order of this
Court. Each party is ordered to abide by the terms and conditions
thereof, as if the same were fully set forth herein.
2. The Court reserves jurisdiction for purposes of
enforcing the terms of the foregoing Joint Stipulation, related
Settlement Agreement and this Order.
3. This cause is hereby dismissed, without prejudice,
and in the event that the payments required to be made by the CITY
OF MIAMI to the Plaintiff under the Settlement Agreement are so
made, then this cause shall be deemed dismissed with prejudice,
with each party to bear its respective costs.
DONE AND ORDERED in Chambers at Miami, Dade County,
Florida, this
day of December, 1984.
CIRCUIT COURT JUDGE
85-17
2, 1984 FILE: L-78-136
of S.R. Sterbenz vs.
Mi, et al.
art Case #78-16901
lving Salary and Pensio
kssistant City
aim wherein he
glary increases
een paid to him
Lee status for
through his
taint to add a
Retirement Plan
eased then his
ed accordingly..
ing Plaintiff,
,uart A. Simon
ty in favor of
estion of the
ae Court Order
ate the salary
to receive all
ons show that a
67,700.44 (the
of Limitations
of Limitations
, the Pension
based upon the
salary and upon
wed $50,742.09
(October 1978
)ns, the monies
00 (see above)
arrearages and
feet a further
85--17
0.
.
Honorable Mayor and Members
of the City Commission
December 12, 1984
Page 2
savings to the City, the payments to Sterbenz have been
structured as follows:
1. AS TO ALLEGED SALARY ARREARAGE:
$10,000.00 within thirty (30) days after the City
Commission approves the total settlement; and
$30,000.00 payable over seventy-two months (six
years) at $416,.66 per month for a total of
$5,000.00 per year. Payments are to begin on
December 1, 1987 and to continue thereafter for
seventy two months with the final payment to be
made in November of 1993.
2. AS TO ALLEGED PENSION ARREARAGES:
$31,000.00 to be paid prior to January 30, 1985
(presupposes City Commission approval given prior
thereto); and the Plaintiff, Sterbenz' pension to
be increased from $1,765.56 per month to $2,456.08
per month (which is the corrected monthly pension
based upon his "final" salary).
Sterbenz has executed in escrow, the Settlement Agreement
and General Release required therein. The City Attorney's office
recommends that the City of Miami pay the amount described to
resolve this claim.
LAD/LMF/wpc/ab/153
Enclosures: Resolution
Settlement Agreement
Stipulation for Settlement
General Release
Partial Summary Judgment
85-17