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Here’s The Scoop … Town Of Lauderdale-By-The-Sea V. Former Town Manager Esther Colon …. Part 2 ….The “Release” Says It All …

PAYOUT ….INVESTIGATION …. CHARGES  ….. LAWSUIT  ….. MEDIATION …. SETTLEMENT …. RELEASE ….

Dear Readers …yesterday the Town’s Commissioners emerged from a Shade Session and took to the dais to vote on a joint Settlement Agreement and General Release with Ms. Colon and the Town after mediation that took place last week … That agreement/release became public according to the Town Attorney’s statement on the dais…This writer will now give an overview with excerpts…and some commentary….

The agreement/release is 9 pages long and begins by stating it “is entered into by and between the Town of Lauderdale-By-The- Sea (the “Town”) and Esther Colon (“Colon”) (collectively, the “Parties”) … it continues with all the usual “Whereas’ …beginning with Colon entering employment with the Town on May 22, 2007 as Town Manager…Whereas section 4.1.3 and 5.0 of the Employment agreement gave the Town the ability to terminate her at any time with or without cause…Whereas under sec. 5. Colon is entitled to certain severance and leave payouts in event of unilateral termination…Whereas Town Commission voted April 20, 2010 to terminate her at Special meeting in accordance with sec. 5.0…Whereas immediately after the meeting Town staff processed Colon’s severance and leave payouts and such payouts were thereafter deposited into Colon’s account on April 23, 2010…Whereas Town Commission authorized an investigation into the final payout….Whereas based on the investigation Town asserted Colon was overpaid in amount of $69,308.62…Whereas Town commenced a lawsuit against Colon seeking reimbursement for claimed overpayment Town of LBTS v.Esther Colon Case No. 10-26301(08) which is pending in 17thJudicial Circuit in Broward County, Fl. (the “Complaint”)…

“Whereas, Colon denies that the severance payments were incorrect and asserts that she has actionable employment claims against the Town:”

“Whereas, the Parties recognize that the resolution to these differences in a manner favorable to their respective interests cannot be reasonably predicted and that litigation and/or administrative action to resolve these differences will require the expenditure of significant funds and resources by both Parties;”

“Whereas,the Parties hereto prefer to enter into a compromise in order to avoid the uncertainties and expense of further proceedings.”

“Now Therefore, in consideration of their mutual promises contained herein, the Parties hereby agree as follows:”

“1. Dismissal of the Complaint with Prejudice. Within ten (10) calendar days of its receipt of the payment of the consideration set forth in paragraph 2 below, the Town will cause its counsel to execute and file notice of Dismissal with Prejudice of the Complaint.”

“2. Consideration. In exchange for the mutual promises exchanged herein, Colon agrees to pay the Town the total sum of forty three thousand two hundred fifteen dollars and ten cents ($43,215.10), inclusive of all claims for attorneys’ fees and costs. The foregoing payment reflects Colon’s reimbursement to the Town of the disputed portion of the sick leave payment provided to Colon by the Town as part of her severance and leave payments. This payment, which will be made within ten (10) days of the Effective Date of this agreement as defines in paragraph 17 below, will be made by check payable to “Town of Lauderdale-By-The-Sea” and shall be tendered to the Town’s legal counsel, Susan L. Trevarthern Esq. The Town agrees that the payment set forth above is all it is entitled to receive from Colon as settlement of any and all claims or demands against Colon of any kind or nature that it once had or now has, including but not limited to claims asserted in Case No., 10-26301(08) pending in the Seventeenth Judicial Circuit in and for Broward County, Florida and all those claims reasonably related to or arizing out of those claims.”

“The parties understand and agree that Colon will retain disputed portion of the vacation payment provided to her in the amount of eighteen thousand five hundred and fifty six cents ($18,593.56). The parties further understand and agree that the disputed deferred compensation payment provided to Colon in the amount of seven thousand four hundred ninety nine dollars and ninety six cents ($7,499.96) will be remitted by Town to Colon’s account with Nationwide Retirement (PEBSCO) along with the amounts that Colon had contributed from her severance pay, which is seven thousand four hundred nineteen dollars and fifty six cents ($7,419.56). The Town shall make pension contributions to the Florida Retirement System for wages and vacation pay provided to Colon to the extent required by Florida Statutes.”

“The Town shall continue Colon’s participation in the Town’s dental, health,life, vision and disability insurance plans at Colon’s expense until such time as the amounts prepaid by Colon on or about April 20, 2010 are exhausted.”

“3. Adequate Consideration. The Town agrees that the consideration paid to it as set forth in paragraph 2 above constitutes adequate and ample consideration for the rights and claims it is waiving under this agreement and for the obligations imposed upon it by virtue of this agreement.”

“4. Complete Release.

a. Release by the Town

The Town hereby voluntarily releases, waives , and forever discharges any and all claims, rights, demands, actions, of any kind whatsoever, known or unknown, foreseen or unforeseen, foreseeable or unforeseeable, and any consequences thereof, which it has or may have against Colon from the beginning of the world until the date of execution of this Agreement. It is the Town’s intention to fully,finally,and forever resolve and release any and all disputes it may have or believe itself to have against Colon with respect to any alleged acts occurring before the effective date of this Agreement (as defined in paragraph 17 below), whether those disputes are presently known or unknown, suspected or unsuspected.”

“b. Release by Colon

Colon hereby voluntarily releases, waives , and forever discharges any and all claims, rights, demands, actions, of any kind whatsoever, known or unknown, foreseen or unforeseen, foreseeable or unforeseeable, and any consequences thereof, which it has or may have against the Town from the beginning of the world until the date of execution of this Agreement, including , but not limited to, any claim(s0 under:

The Employment Agreement

Title VII of the Civil Rights Act of 1964;

The Civil Rights Act of 1991;

The Florida Civil Rights Act of 1992;

Sections 1981 through 1988 of Title 42 of the United States Code;

The Constitutions of the United States and the State of Florida;

The Age Discrimination in Employment Act;

The Older Workers Benefit Protection Act;

Florida Wage and Hour Laws;

Florida and federal whistle-blower laws including 112.3187, Florida Statutes;

The Internal Revenue Code;

The Consolidated Omnibus Budget Reconciliation Act;

The Immigration Reform and Control Act of 1986;

The Americans with Disabilities Act of 1990;

The Fair Labor Standards Act;

The Equal Pay Act of 1963;

The Family and Medical Leave Act of 1993;

Any other federal, state. or local civil or human rights law or any other federal, stat, or local law, regulation,or ordinance;

Florida Sunshine and Public Records law;and Any public policy, contract,or common law claims, including any tort claims (e.g. negligent or intentional infliction of emotional distress; negligent retention, supervision or training; defamation; assault; battery;false imprisonment; wrongful termination; loss of consortium, etc.) whether base on common law or otherwise.

Colon understands that the foregoing list of causes of action which has been waived is meant to be illustrative rather than exhaustive, and understands and acknowledges that she is waiving and releasing the Town from any and all causes of action of any nature whatsoever. It is Colon’s intention to fully, finally, and forever resolve and release any and all disputes she may have or believe herself to have against the Town with respect to alleged acts occurring before the effective date of this agreement (as defined in paragraph 17 below), whether those disputes are presently known or unknown, suspected or unsuspected.”

“5. Florida Retirement System. The parties acknowledge that Colon has filed or will file an application for retirement benefits to the Florida Retirement System and further acknowledge that this Agreement shall have no bearing on Colon’s right to pension benefits under the Florida Retirement System (i.e., Chapter 121, Florida Statutes).”

” 6. May 22, 2007 Employment Agreement. Upon public approval of this agreement, the Employment Agreement shall thereupon be considered null and void and of no force or effect between parties.”

“7. No Lawsuit or Claims by Third Parties, The Parties waive the rights and claims set forth above, and also agree not to institute, or have instituted by anyone, a lawsuit against each other based on any such claims or rights. The Parties further acknowledge and agree that with respect to the rights and claims they are waiving, they are waiving not only their right to recover money or any other relief in any action they might commence, but also their right to recover in any action brought on their behalf by any other party.”

“8. No Precedent Set. The Parties agree that this Agreement is based upon the unique facts and circumstances of this particular case and does not establish a precedent, pattern or evidence of past practice for the resolution, disposition, or determination of any other matter. Colon further acknowledges that this Agreement is being entered into by the Parties as a compromise of the disputed claims and not on the merits, and is solely for the purposes of avoiding the expense and inconvenience of further litigation. Neither this Agreement, nor any other consideration made or contained herein is to be construed to be an admission of liability on the part of the Town or Colon.”

“9. Employment Reference. The Town agrees that if any inquiry is made to the Town Manager and/or its Human Resources Director by a prospective employer of Colon, such individuals) will only inform the prospective employer of Colon’s dates of employment and job title and will not disparage Colon in any way. If an inquiry is made to review Colon’s personnel file or any documents created or maintained by the Town, the file and/or documents will be made available in accordance with applicable law. Attached hereto as Exhibit A is a Joint Statement by the parties concerning the pantie’s dispute and resolution thereof.”

“10. No Future Employment. Colon further agrees that she is not eligible for reinstatement and will not apply in the future for employment or work with the Town, its departments and/or agencies, in any capacity.”

“11. Public Record. Colon understands and agrees that under the Public Records Law, the Town is required to, and shall upon request by any third party, disclose the terms of this agreement, and the Town shall comply with all federal, state, and local laws requiring disclosure of public records.”

“12. Non- Admission of Wrongdoing. The Parties agree that neither this Agreement nor the furnishing of any consideration under this Agreement shall be construed  as an admission by any party of any wrongdoing, liability, or unlawful conduct.”

“13. Governing Law and Interpretation. This Agreement shall be governed and construed in accordance with the laws of the State of Florida. If any provision of this Agreement is declared illegal or unenforceable by any court of competent jurisdiction and if it cannot be modified or enforceable, such provision shall immediately become null and void, leaving the remainder of the Agreement in full force and effect. In the event that it becomes necessary for either party to enforce any provisions of this Agreement, the prevailing party shall be entitled to recover its attorneys’ fees and costs in any such action. Venue for any litigation arising from this Agreement will be in Broward County, Florida.”

“14. Entire Agreement. This Agreement sets forth the entire agreement between the parties and shall supersede any and all prior agreement, understandings, whether written or oral, between parties, except as specified in this Agreement. The Parties acknowledge that they have not relied on any representations, promises, or agreements of any kind made to them in connection with their decision to sign this Agreement except for those set forth in this Agreement.”

“15. Encouragement to Consult Attorney. The Parties acknowledge that they have taken a reasonable period of time to consider the Agreement and have consulted with legal counsel before signing this Agreement.”

“16. Amendment. This Agreement may not be amended except by written agreement signed by all parties.”

“17. Effective Date. This Agreement will only become effective upon full execution of this Agreement and the approval of the Town Commission.”

“18. Commission Approval. Colon expressly understands and agrees that this agreement will be presented to the Town Commission for approval at a public meeting on or before August 30, 2010. This Agreement will not be binding on the Parties unless and until approved by the Commission. Colon further expressly understands and agrees that she may not revoke her acceptance o this Agreement within the time frame during which Commission approval is pending.”

“19. Heading. Section headings are used herein for convenience of reference only and shall not affect the meaning of any provision of the Agreement.”

“20. Acknowledgment. The Parties acknowledge that they have carefully read and understand this agreement consisting of nine (9) pages and agree that they have not made any representations other than those contained herein. Colon also acknowledges that she enters into this Agreement voluntarily, without any pressure or coercion and with full knowledge of its significance, and this Agreement constitutes a full and absolute settlement and bar as to  any and all claims she had, has, or may have against the Town.”

“In Witness Whereof, the Parties hereto knowingly and voluntarily executed this Agreement as of the date set forth below.

“signed Esther Colon  7/28/2010”

“JOINT STATEMENT

The Town of Lauderdale-By-The-Sea (“Town”) and its former Town Manager, Esther Colon (“Colon”), hereby jointly agree to the following statement;

Whereas, Colon served time as the Town Manager under Contract from May 22, 2007, through April 20, 2010, at which time the Town Commission unilaterally terminated Colon without cause; and

Whereas, Colon subsequently received severance amounts from the Town; and

Whereas, the Town reasonably asserted that a portion of the severance payments made to Colon were not calculated correctly under the Contract and its policies; and

Whereas, Colon reasonably disputed the town’s assertions and contended the severance amount was calculated correctly under Contract and the Town’s policies; and

Whereas, Colon and the Town voluntarily mediated their contractual dispute.

Now, Therefore Colon and the Town jointly agree their dispute has been resolved at Mediation.”

……………

BC- While as previously posted I fully understand how mediation works…and fully understand the costs involved in litigation and the fact that attorney fees were not to be recoverable per, we are told, our Town Attorneys….a bad taste is left in my mouth all the same …I believe that if Ms. Colon cared about the Town as she claimed to right up to the time she left Jarvis Hall for the last time on April 20, 2010 she would have come to the table as soon as she was contacted of any perceived overpayment to resolve the issue then and there…She would not have allowed her counsel to disparage the very Town law firm she herself brought to Town and championed …She would not have allowed counsel to disparage her replacement out of a common professional courtesy ….and she would not have further cost over and beyond any overpayment made in error in added attorney costs as well as Commission and staff time … In the time between Ms. Colon’s termination and this Agreement much has arisen as a result of looking into the payout with a new administration taking over the reins and in preparation of a new budget… Some very troubling findings are now in full view of the taxpayers stemming from Ms. Colon’s time employed either as Finance Director and Town Manager…in this writer’s opinion…

I am told and I am awaiting a PRR for her predecessor’s full payout which may contain added severance and benefits he too might have been overpaid under her watch… We just learned of an ongoing subsidy in payment of SRC sewer bills….We are told also of sewer fees being increased that were not incrementally passed on to LBTS customers leaving taxpayers with the possibility of a big spike in fees this next fiscal year…We have heard of concerning and puzzling administrative and financial practices that were done that do left in her wake… Just last evening the Commission discussed projects that were not done properly whether it was the Pavilion and the drainage problem…the A1A Streetscape Project and how much is SRLakes property  …The El Mar Drive Project and where the funds came from thus far…and leftover Capital Improvement Projects and/or agreements that cannot be found …. what a mess!…

This writer feels today just as I did when I stumbled onto the first hint of something being askew with the former Town Manager’s actions in 2008 concerning the Commercial Blvd. Pavilion…a total lack of comprehension of how she could, in my opinion, make so many flawed unilateral decisions of that magnitude and go to such great lengths to continue doing so until she was finally terminated….

more to come…..

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