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R-02-1139
J-02-910 10/10/02 RESOLUTION NO. 02-1139 A RESOLUTION OF THE MIAMI CITY COMMISSION, WITH ATTACHMENT(S), AUTHORIZING THE DIRECTOR OF FINANCE TO ESTABLISH A CLASS ACTION SETTLEMENT FUND IN THE AMOUNT OF $14,000,000 TO PAY POTENTIAL CLAIMANTS,. INCLUSIVE OF ATTORNEYS' FEES, SUBSTANTIALLY IN ACCORDANCE WITH THE SETTLEMENT AGREEMENT, ATTACHED AND INCORPORATED, IN SETTLEMENT OF ANY AND ALL CLAIMS AND DEMANDS AGAINST THE CITY OF MIAMI RELATED TO THE IMPOSITION OF A PARKING SURCHARGE FOR THE CASE OF PATRICK MCGRATH III, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, MIAMI-DADE COUNTY, A POLITICAL SUBDIVISION OF THE STATE OF FLORIDA, AND LAUREN VARGA, VS. CITY OF MIAMI, IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA, CASE NO. 99-21456 CA(10), SAID FUND TO CONSIST OF ALL PARKING SURCHARGE SUMS COLLECTED BY MIAMI- DADE COUNTY AT VARIOUS FACILITIES AND IN AN AMOUNT NOT TO EXCEED $8,000,000, PROVIDED BY THE CITY OF MIAMI, UPON EXECUTION OF A SETTLEMENT AGREEMENT WHICH INCLUDES RELEASES IN FAVOR OF THE CITY OF MIAMI, ITS PRESENT AND FORMER OFFICERS, AGENTS AND EMPLOYEES FROM THE CERTAIN STATED CLAIMS AND DEMANDS; ALLOCATING FUNDS FROM ACCOUNT CODE NO. 001000.000000.2235 FOR SAID PURPOSE. WHEREAS, Patrick McGrath III, individually and on behalf of all others similarly situated, Miami -Dade County, a political subdivision of the State of Florida, and Lauren Varga filed a 1v;Lsa� of T 2002 R�e1�Rk0R'► �` 02-1139 claim and lawsuit on behalf of themselves and other similarly situated members of their class against the City of Miami, in the Circuit Court of the Miami -Dade County, Florida Case No. 99-21456 CA(10); and WHEREAS, the above claim and lawsuit have been evaluated by the Director of Finance, Counsel representing the City of Miami, and the City Attorney and each recommend that the claim and lawsuit be settled by the establishment of a class action fund in an amount not to exceed $14,000,000 for potential claimants, inclusive of attorneys fees and substantially in accordance with the Settlement Agreement, attached and incorporated; NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: Section 1. The recitals and findings contained in the Preamble to this Resolution are adopted by reference and incorporated as if fully set forth in this Section. Section 2. The Director of Finance is authorized to establish a class action settlement fund in the amount of $14,000,000 to pay potential claimants, inclusive of attorneys fees, substantially in accordance with the Settlement Agreement attached and incorporated, in settlement of any and all claims Page 2 of 4 02-1139 and demands against the City of Miami related to the imposition of a parking surcharge for the case of Patrick McGrath III, individually and on behalf of all others similarly situated, Miami -Dade County, a political subdivision of the State of Florida, and Lauren Varga vs. City of Miami, in the Circuit Court of the Eleventh Judicial Circuit in and for Miami -Dade County, Florida, Case No. 99-21456 CA(10), said fund to consist of all parking surcharge sums collected by Miami -Dade County at various facilities and an amount not to exceed $8,000,000 provided by the City of Miami upon execution of a settlement agreement which includes releases in favor of the City of Miami, its present and former officers, agents and employees from the certain stated claims and demands with funds allocated from Account Code No. 001000.000000.2235 for said purpose. Section 3. Prior to execution of the Settlement Agreement, the City Attorney is authorized to make any revisions to the Settlement Agreement which the City Attorney finds are necessary to implement this Resolution and to effectuate its intent. Page 3 of 4 02-1139 Section 4. This Resolution shall become effective immediately upon its adoption and signature of the Mayor Y PASSED AND ADOPTED this 10th ATTEST: i PRIdCILLA A. THOMPSON CITY CLERK AND CORRECTNESS 'fANDRO VILARELLO TY ATTORNEY W6644:tr:MJC:BSS day of October, 2002. UEL A. DIAZ, MAYO �i If the Mayor does not sign this Resolution, it shall become effective at the end of ten calendar days from the date it was passed and adopted. If the Mayor vetoes this Resolution, it shall become effective immediately upon override of the veto by the City Commission. Page 4 of 4 02-1139 IN THE CIRCUIT COURT OF THE 11 TH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA GENERAL JURISDICTION DIVISION CASE NO.: 99-21456 CA -10 PATRICK McGRATH III, individually and On behalf of all other similarly situated, Plaintiff, V. THE CITY OF MIAMI, a municipal Corporation, Defendant. SETTLEMENT AGREEMENT AND RELEASE THIS SETTLEMENT AGREEMENT AND RELEASE ("Agreement") is entered into by and between Patrick McGrath III, individually and as representative plaintiff ("McGrath"); Miami -Dade County, a political subdivision of the State of Florida ("County"); Public Health Trust of Miami -Dade County, an instrumentality of Miami -Dade County; and Laureen Varga, individually (collectively "Settling Plaintiffs"); and the City of Miami, Florida, a municipal corporation of the State of Florida ("City") a2-1139 Recitals 1. The purpose of the Agreement is to forever settle the Settling Plaintiffs' claims which are included in the amended class action complaint against the City in Patrick McGrath III v. The City of Miami, Eleventh Circuit Court case no. 99-23765 ("McGrath Case") as well as any and all claims asserted against the City in the complaint brought by the County, Miami -Dade County Public Health Trust and Laureen Varga v. The City of Miami, Eleventh Circuit Court -case no. 99- 21456 ("County Case"). The cases challenge the validity and applicability of the parking surcharge imposed by the City (collectively the "Litigation").' 2. Settling Plaintiffs and the City enter into the Agreement on behalf of themselves, and all of their heirs, administrators, executors, conservators, and assigns, as applicable and without limitation. If, and only if, the settlement receives "Final Approval" as defined herein, the members of the Class (as defined below) will be deemed to have entered into this Agreement on behalf of themselves, and all of their heirs, administrators, executors, conservators and assigns, as applicable and without limitation. 3. In the McGrath Case, the plaintiff challenges the validity of a parking surcharge imposed by the City under its Ordinance No. 11813 ("Surcharge") and the City's Surcharge regulations promulgated thereunder (collectively the I / All claims asserted against the City in the McGrath Case and the County Case will be 02-1139 "Ordinance") on the users of certain parking facilities in the City. The Ordinance is based upon § 218.503, F1a.Stat. (1999) ("Statute"). The County Case challenges the validity of the Surcharge imposed by the City under the Ordinance and based upon the Statute on the users of certain parking facilities owned or operated by the County. The County has intervened in the McGrath Case. 4. McGrath seeks judgment ordering the City to refund all parking surcharges together with interest, attorneys' fees and court costs. The County seeks to enjoin the City from imposing the Ordinance on parking facilities owned or operated by the County. 5. The Florida Supreme Court has affirmed the decision of the Third District Court of Appeal in the McGrath Case that the Statute constitutes a special law authorizing the imposition of non -ad valorem taxes in violation of the Florida Constitution and that the Ordinance and Surcharge constitute an unconstitutional, non -ad valorem tax. The Florida Supreme Court has remanded the case to the Eleventh Circuit Court for proceedings consistent with the Court's opinion, including the proper remedies in this case and the effect of the 2001 amendments to § 218.503 ("Amended Statute") on the issues in the Litigation. 6. Each of the parties has conducted substantial investigation, recognizes that the issues presented on remand are unlikely to be resolved without extensive referred to collectively as "Claims." 3 02-1139 and costly litigation and that further litigation will cause inconvenience, distraction, disruption, delay, and expense disproportionate to the potential benefits of litigation, and has taken into account the risk and uncertain outcome inherent in any litigation. 7. Throughout the Litigation, the City has denied the substantive allegations made by McGrath and the County and has denied any and all liability and damages to anyone with respect to the facts or causes of action alleged in the Litigation, and continues to do so. The City asserts that the Litigation is not suitable for class treatment. Nevertheless, without admitting or conceding any liability or damages whatsoever, the City desires to settle the claims on the terms and conditions set forth in the Agreement in order to avoid the burden, expense and uncertainty of continuing the Litigation; to avoid the diversion of its resources and personnel required by continuing to litigate; and to put to rest all claims that are, or could have been brought or asserted in this or any similar litigation, in this or any other court or jurisdiction, which are based upon any of the facts, circumstances or conduct alleged in the Litigation. The City has, therefore, determined that it is desirable and beneficial that the claims be settled in the manner and upon the terms and conditions set forth in the Agreement. Accordingly, the City has stipulated in the Agreement to the creation of a Class as consideration for the settlement of the claims. 4 02-1139 8. Class Counsel (as defined below) has analyzed and evaluated the merits of all of its claims against City in the Litigation, and the impact of the Agreement on the members of the Class. Class Counsel is aware that City has defenses upon which City might prevail before, at or following trial, and that as a result members of the Class might not receive any benefit or consideration for the claims which are asserted in the Litigation. Based upon the analysis and evaluation of a number of factors, and recognizing the substantial risks of continued litigation, including the possibility that the claims, if not settled now, might not result in a recovery which is not as good as the settlement for members of the Class, Settling Plaintiffs and Class Counsel are satisfied that the terms and conditions of the Agreement are fair, reasonable and adequate, and that this settlement is in the best interests of the Class. 9. The Agreement is the result of good -faith, arms -length negotiations and without collusion. In consideration of the premises and of the mutual promises hereinafter set forth, and all other good and valuable consideration, receipt and sufficiency of which are hereby acknowledged, the parties agree to enter into the Agreement. 5 02-1139 I. DEFINITIONS 1.1 City. "City" shall mean and include defendant The City of Miami, a political subdivision of the State of Florida, and all of its current and former subsidiaries, divisions, affiliated or related entities, successors and assigns, and each of their respective past, present and future directors, officers, employees, agents, brokers, covertures, representatives, attorneys, trustees, heirs, administrators, partnerships, operators, managers, registered representatives, executors, conservators, successors -in -interest, accountants, investment bankers, advisors and assigns. 1.2 County. The County shall mean and include Miami -Dade County, a political subdivision of the State of Florida, and all of its current and former subsidiaries, divisions, affiliated or related entities, successors and assigns, and each of their respective past, present and future directors, officers, employees, agents, brokers, covertures, representatives, attorneys, trustees, heirs, administrators, partnerships, operators, managers, registered representatives, executors, conservators, successors -in -interest, accountants, investment bankers, advisors and assigns. 1.3 Settling Plaintiffs. "Settling Plaintiffs" shall mean and include the Settling Plaintiffs and all members of the settling class, as well as their agents, 0 02-1139 representatives, heirs, administrators, executors, conservators, successors -in -interest, and assigns, acting as representatives of the Class. 1.4 Surcharge. "Surcharge" shall mean the 20% fee charged by the City beginning on September 1, 1999, for the use of a parking or storage space in a parking facility in the City pursuant to the Ordinance, the Statute and the Amended Statute. 1.5 Notice Class. "Notice Class" shall mean and include the following: All natural persons or entities who paid a Surcharge for parking or storage of a vehicle in a parking facility open to the public and located within the City of Miami, Florida, pursuant to Fla. Stat. § 713.78 from September 1, 1999 through September 30, 2002. Excluded from the Notice Class is the City, as defined herein, but not its employees and their immediate family members. 1.6 Class. "Class" shall mean and include all members of the Notice Class, excluding all persons who, in accordance with the terms of the Agreement, execute a timely request for exclusion from the Notice Class as provided for in the Order Granting Preliminary Approval (defined below). 1.7 Class Period. "Class Period" shall mean the period from September 1, 1999 through September 30, 2004. 1.8 Class Counsel. "Class Counsel" refers to Thomas J. Korge, Esq., Chris Korge, Esq. and Mark J. Heise, Esq. 02-1139 1.9 Counsel for City. "Counsel for City" or "City's Counsel" refers to Alejandro Vilarello, Esq., City Attorney, and Maria J. Chiaro, Esq., Assistant City Attorney; and Joseph H. Serota, Esq.; Weiss Serota Helfinan Pastoriza & Guedes, am 1.10 Class Representative. Class Representative is Patrick McGrath III. 1.10 Preliminary Approval. "Preliminary Approval" means that the Court has entered an Order Granting Preliminary Approval of the terms and conditions of the Agreement, including the manner and timing of providing notice to the Notice Class, the time period for opting out of the Class, and the date for hearing of the motion for final approval of the Agreement. 1.11 Order Granting Preliminary Approval. "Order Granting Preliminary Approval" shall mean the order entered by the Court which grants Preliminary Approval of the Agreement. The Order Granting Preliminary Approval shall be in substantially the same form as is attached hereto as Exhibit 1. 1.12 Class Notice. "Class Notice" or "Notice" refers to the Notice which will be mailed to all Notice Class members and published in The Miami Herald and El Nuevo Herald after the Court enters the Order Granting Preliminary Approval, which Notice shall be in substantially the same form as is attached hereto as Exhibit 2. 8 02-1139 1.13 Final Settlement Order and Judgment. "Final Settlement Order and Judgment" and "Order" refers to the Final Settlement Order and Judgment entered by the Court, which gives final approval to the Agreement, and provides for the orderly performance and enforcement of the terms and conditions of the Agreement, which Order shall be in substantially the same form as is attached hereto as Exhibit 3. 1.14 Final Approval. "Final Approval" means that all of the following have occurred: (a) The Court has entered the Final Settlement Order and Judgment, as defined herein; and (b) The Final Settlement Order and Judgment has become "Final." "Final" means: (i) If no motion for rehearing or reconsideration is filed and if no appellate review is sought, after the expiration of time for seeking such review; or (ii) If rehearing, reconsideration or appellate review is sought, after any and all avenues of rehearing, reconsideration and appellate review have been exhausted and no further rehearing, reconsideration or appellate review is permitted, or the time for seeking such review has expired and the Final Settlement Order has not been modified, amended or reversed in any way. Gj 02-1139 1.15 Common Fund. The "Common Fund" totals $14 million as follows: (a) The County will contribute to the Common Fund the entire amount of the Surcharge collected by the County for all periods beginning on September 1, 1999, and ending on September 30, 2002 (the "County Facilities Fund"). (b) The City will contribute the balance of the $14 million common fund, i.e., the difference between $14 million and the County Facilities Fund (the "Non -County Facilities Fund"). 1.16 Refund(s). "Refund(s)" refers to the amount of the Surcharge to be reimbursed to all members of the Class who timely complete and submit a Request for Refund Form. 1.17 Singular/Plural. The plural of any defined term includes the singular, and the singular of any defined term includes the plural, as the case may be. II. GENERAL TERMS OF THE SETTLEMENT 2.1 Purpose of Settlement. The Agreement is being entered into by the City solely to settle and compromise any and all disputes between the parties as described herein. No finding has been made that the City is engaged in any io 02-1139 wrongdoing or wrongful conduct or otherwise acted improperly or in violation of any law or regulation in any respect. 2.2 Class Action Administrator. The class action administrator ("Administrator") is the individual selected by the parties to administer notices to and responses from class members and the disbursement to the Common Fund in accordance with the Settlement. Fees and costs associated with the Administrator shall be paid as set forth in the Agreement. 2.3 Cessation of Surcharge by the City. As further consideration for the Agreement, the City agrees to cease collecting the surcharge pursuant to the Amended Statute as follows: (a) The City agrees not to impose the Surcharge, and the County will discontinue collecting the Surcharge, at the County parking facilities located at the Airport, Seaport, and three (3) GSA downtown parking facilities [to be specifically designated and described by the County no later than October 15, 2002], consistent with § 125.015, F1a.Stat., for all periods after September 30, 2002. (b) The County will collect and remit the parking surcharge at all other County facilities, pursuant to the Ordinance, for all periods after September 30, 2002. Il 02-1139 (c) The City will discontinue imposition of the parking surcharge pursuant to the Ordinance and the Amended Statute on or after October 1, 2004. 2.4 Creation of Common Fund. As additional consideration for the Agreement, City and County agree to create the Common Fund (as previously described) which will total $14 million. At all times prior to transfer for disbursement by the Administrator, the County's Facilities Fund will be held by the County. It will be treated as allocated designated funds. The County will transfer the County Facilities Fund to the Administrator immediately after the Final Approval for disbursement in accordance with the Agreement. At the earlier of the time of such transfer or November 1, 2002, the County's independent certified public accountants shall certify the correct amount of the County's Facilities Fund to the Administrator, the City, and Class Counsel. At all times prior to transfer for disbursement by the Administrator, the Non -County Facilities Fund will be held by the City and will also be treated as allocated designated funds. The City will transfer the Non -County Facilities Fund to the Administrator immediately after the Final Approval for disbursement in accordance with this Settlement Agreement. 2.5 Application for Refunds. Each Class member, or in the case of the death of a Class member, each Class member's personal representative, shall have the right to request a refund from City for the Surcharge. Class members shall 12 02-1139 have no less than sixty (60) days from the date City mails and publishes the Request for Refund Forms to members of the Class to submit a Request for Refund Form. Only Class members or, in the case of the death of a Class member, their personal representatives, shall have the right to seek a Refund. 2.6 Injunctive Relief. Any breach of the covenants contained in this paragraph will cause immediate, substantial, and irreparable harm to the Settling Plaintiffs and to the City for which monetary damages will not be an adequate remedy. The Settling Plaintiffs and the City shall have the right to restrain, by injunction, restraining order, or other equitable relief, any breach or threatened breach of the covenants made under this paragraph, and to compel specific performance of those covenants. 2.7 Attorneys' Fees and Expenses. The Parties agree that Class Counsel will be entitled to recover reasonable attorney's fees and expenses from the Common Fund .in the event the circuit court enters the Final Settlement Order and Judgment and the Agreement has received Final Approval. The parties agree that the amount of attorney's fees will be determined by the Court in accordance with law. The City will not object, either directly or indirectly, to or oppose Class Counsel's fee and expenses provided such request is based on applicable law. The City will accept the Court's determination of the amount of reasonable 13 02-1139 attorneys' fees and expenses, and will pay the attorneys' fees and expenses from the Common Fund in the manner provided in Section 2.8. 2.8 Costs. The City shall initially bear the costs and expenses of administering the Agreement, including, but not limited to, providing notice of the settlement to the "Notice Class" and providing the Request for Refund forms to the Notice Class. When the Administrator disburses the Common Fund, the first priority will be to reimburse the City for all costs associated with the -Agreement, including the cost of notice and publication of notice, and all other costs of class certification. 2.9 Payment of Attorneys' Fees and Expenses. Within fifteen (15) days after Final Approval, the Administrator shall pay the amount of attorneys' fees and expenses determined to be due pursuant to Section 2.7 to Class Counsel. These fees and expenses will be paid by the Administrator as a first priority along with the costs described in Section 2.8. 2.10 Notice to the Notice Class. The City will send the Class Notice to all Notice Class members in the form attached hereto as Exhibit 2 in accordance with Section 3.4. Specifically, the City shall provide individual notice by First Class Mail to all class members whose names and addresses may be ascertained through reasonable effort. The City will also publish the Class Notice two (2) times over 14 02-1139 the course of two (2) consecutive weeks in The Miami Herald and El Nuevo Herald. The parties agree to work together in good faith to resolve any changes to the precise language of the Notice. 2.11 Releases. As part of the consideration for the Agreement, upon Final Approval, the Class shall be deemed to have provided full and complete releases of any and all claims as described in Section 5 below. 2.12 Stay of Proceedings. Within five days after execution of the Agreement, the parties will request that the Court stay and suspend all discovery and other proceedings in the Litigation, except for matters related to the settlement approval process. III. APPROVAL AND CLASS NOTICE 3.1 Approval by City and County Commissions. The City Commission and (if required by the County Attorney) the County Commission shall each approve the Agreement on or before October 15, 2002. 3.2 Preliminary Approval by the Court. Within five days after the City Commission approves the Agreement, the Parties will move the Court for Preliminary Approval which, among other things, certifies the Class, appoints the Settling Plaintiffs as representative of the Class, appoints Class Counsel as counsel 15 02-1139 for the Class, grants Preliminary Approval of the Agreement, approves the form of Notice to the Notice Class, and the manner of dissemination of the Class Notice. 3.3 Limited Effect of Class. The certification by the Court of the Class shall be binding only with respect to proceedings related to the Agreement, and shall have no bearing in deciding whether the claims asserted in the Claims are, or were, appropriate for class treatment for trial in the absence of the Agreement. The City stipulates to and supports the certification of the Class for purposes of this settlement only. In the absence of the Agreement, the City, McGrath and the County adhere to the arguments and positions they asserted in connection with the motion for class certification, and nothing herein shall be construed as being inconsistent with those positions. Accordingly, if the Agreement terminates under any provision of the Agreement, the certification of a Class provided for by the Agreement shall be vacated, and the Claims shall revert to the status that existed immediately prior to the execution of the Agreement. 3.4 Class Notice. The Notice to the Notice Class in this Litigation will be mailed, via U.S. mail, postage prepaid, to the most recent address of all Notice Class members, as reflected in the records within the possession, custody or control of the City. The City shall be required to mail only one Notice to each 16 02-1139 address appearing in City's records, even if more than one member of the Notice Class resides at that address. The Notice will advise the Notice Class that: (a) Any Notice Class member may be excluded from the Class by mailing a written request for exclusion to the address provided in the Notice, which must be personally signed by the Notice Class member, postmarked no later than 30 days before the date of the hearing on the motion for final approval of the Agreement (the "Settlement Hearing"); (b) Written requests for exclusion that are signed by anyone other than the Notice Class member, such as family members, counsel, etc., are not valid and shall be considered void; (c) Any Class member, if he or she desires, may object to the Agreement by filing and serving a written objection, personally signed by the Class member, no later than 30 days before the date of the Settlement Hearing; (d) Any Class member who has filed and served a written objection to the Agreement may enter an appearance at the Settlement Hearing either personally or through counsel; and (e) Any judgment entered with regard to the Claims, whether favorable or unfavorable to the Class, will include and be binding on all Class members, even if such Class member has objected to the Agreement and even if 17 02-1139 such Class member has any other claim, lawsuit or proceeding pending against City. 3.5 Requests for Exclusion. The Notice referred to in Section 3.4 above shall set forth the address to which any requests for exclusion shall be mailed by Notice Class members who wish to opt out of the Claims. That address shall be a post office box, located in Miami, Florida, obtained by the City or its counsel, the cost of which shall be paid from the Surcharge Reimbursement Fund. Original requests for exclusion received at this address on or before the date set forth in the Preliminary Approval Order shall be filed with the Court by the City or the City's Counsel and copies thereof shall be delivered to City's Counsel at or before the Settlement Hearing. All Class members shall be bound by all proceedings, orders and judgments relating to the Claims, even if he or she has pending, or subsequently initiates, litigation against the City relating to the Claims. A Notice Class member who chooses to be excluded from the Class will be excluded entirely from the Class and therefore from participation in the settlement and accordingly will not be entitled to receive any Refunds. All Class members agree that satisfaction of all Claims against City, as well as entry of the Final Settlement Order and Judgment, shall be binding upon all Class members. is 02-1139 3.6 Objections to Settlement. Any Class member who wishes to object to the fairness, reasonableness or adequacy of the Agreement, the settlement, or the amount of attorney's fees and expenses sought by Class Counsel, must file and serve no later than 30 days before the Settlement Hearing a statement of the objection, as well as the specific reason(s), if any, for each objection, including any legal support the Class member wishes to bring to the Court's attention and any evidence the Class member wishes to introduce in support of the objection. Class members may do so either on their own or through an attorney hired at their own expense. If a Class member hires an attorney to represent him, the attorney must: (a) File a notice of appearance with the Clerk of Court no later than 30 days prior to the Settlement Hearing or as the Court may otherwise direct; and (b) Serve a copy of such notice of appearance on one of City's Counsel and Class Counsel (the "Parties' Counsel"). Any Class member who files and serves a written objection, as described herein, may appear at the Settlement Hearing either in person or through personal counsel hired at the Class member's expense, to object to the fairness, reasonableness or adequacy of the Agreement, the settlement, or the Fee Petition. Class members or their attorneys intending to make an appearance at the Settlement Hearing must serve on Parties' Counsel and file with the Court no later than 30 days before the Settlement Hearing or as the 19 02-1139 Court may otherwise direct, a notice of intention to appear. Any Class member who fails to comply with the provisions of the preceding sections shall waive and forfeit any and all rights the Class member may have to appear separately and/or to object, and shall be bound by all the terms of the Agreement and by all proceedings, orders and judgments with regard to the Surcharge Claim. 3.7 Entry of Final Settlement Order and Judgment. At the Settlement Hearing, the date of which shall be set by the Order Granting Preliminary Approval (and which shall be after Notice has been mailed and published, and the period for opting out of the Class has passed), the Settling Plaintiffs and City will request that the Court, among other things: (a) approve the settlement and Agreement as fair, reasonable, adequate, and binding on all members of the Class; (b) enter the Final Settlement Order and Judgment in accordance with the Agreement; (c) determine the amount and approve payment of attorneys' fees and expenses to Class Counsel as provided for in Section 2.9 of the Agreement; and (d) order that the Refunds be distributed to all Class members as provided for herein. 3.8 Effect of Failure to Grant Final Approval. In the event the Court fails to enter the Final Settlement Order and Judgment in accordance with the Agreement, or the settlement does not receive Final Approval as defined herein, the Parties shall proceed as follows: 20 02-1139 If the Court enters the Final Settlement Order and Judgment as provided for in the Agreement, but declines to enter an order approving the Fee Petition in the amount sought by Class Counsel as set forth in Section 2.7 above, Class Counsel shall have the right to appeal such order and City will not oppose such appeal. If the Court declines to enter the Final Settlement Order and Judgment as provided for in the Agreement, the Litigation shall resume, the Agreement shall be of no force or effect and the Parties' rights and defenses shall be restored without prejudice as if the Agreement had never been entered into, unless either the Settling Plaintiffs and/or City: (1) seek reconsideration or appellate review of the decision denying entry of the Final Settlement Order and Judgment; or (2) the Settling Plaintiffs and the City attempt to renegotiate the settlement, and obtain court approval of the renegotiated settlement. If Settling Plaintiffs and/or City elect to seek appellate review of an order declining to enter the Final Settlement Order and Judgment as provided for in the Agreement, and such appellate review is denied or is unsuccessful after exhaustion of all available appellate remedies, the Litigation shall resume, the Agreement shall be of no force or effect and the Settling Plaintiffs' and the City's rights and defenses shall be restored without prejudice as if the Agreement had never been 21 02-1139 entered into, unless otherwise agreed to in writing by Settling Plaintiffs and the City. 3.9 Right To Withdraw. Each Party shall have the right to unilaterally withdraw from and terminate the Agreement if the Court orders any material alteration of the terms of the settlement or the Agreement or the proposed attached Final Settlement Order and Judgment, so that such alterations are less favorable to the withdrawing Party, provided that such right to withdraw and terminate shall permanently expire and be deemed waived unless within five (5) business days after the Court in writing or on the record orders such alteration or enters the materially altered Final Settlement Order and Judgment, the Party wishing to withdraw and terminate files with the Court and delivers to the other Party a written notice of the withdrawal and termination. If any Party timely withdraws and terminates, then the Litigation shall resume, the Agreement shall be of no force or effect and the Parties' rights and defenses shall be restored without prejudice as if the Agreement had never been entered into. 3.10 City's Additional Right To Withdraw. In addition to the rights under the preceding paragraph, the City shall also have the right to unilaterally withdraw from and terminate the Agreement if: 22 02-1139 (a) More than 1000 Notice Class members timely elect to be excluded from the Class and/or settlement; or (b) Any state or federal regulator, self-regulatory organization or other administrative body or government official: (i) takes or threatens to take any regulatory, legal or other action that would impair the City's ability to conclude this settlement on the terms set forth herein; or (ii) requires as a condition of not taking - action any modification to the Agreement, including without limitation any alteration or extension of the scope of the contemplated relief, that the City in its sole discretion believes would impair its ability to consummate the settlement or to provide the contemplated relief or would deprive the City of the benefit of the bargain provided to it by this settlement. Provided that if the City wishes to withdraw and terminate pursuant to the terms of this provision, the City shall file with the Court and deliver to Class Counsel a written notice of the withdrawal and termination no later than five (5) business days after the deadline for filing opt -outs with respect to Section 3.10(a). As of the date of the Agreement, City represents and warrants that it is unaware of any circumstances that would trigger a termination under Section 3.10(b). If the City timely withdraws and terminates, then the Agreement shall be of no force or effect and the Parties' rights and defenses shall be restored without prejudice as if the Agreement had never been entered into. 23 02-1139 IV. DISTRIBUTIONS OF REFUNDS 4.1 Distribution of Refunds. The Administrator shall be responsible for distributing the Refunds as described below. The Administrator, in consultation with Class Counsel and Counsel for the City and County, will have the authority to make all decisions necessary for the orderly implementation and administration of the Agreement and settlement, and the distribution of the Refunds, provided that the Refunds are distributed consistent with the terms of the Agreement. Any disagreement between the Administrator, Class Counsel and Counsel for the City or County with respect to this section shall be resolved initially by the parties. However, upon failure to agree, the parties shall seek a judicial determination from the Court. 4.2 Distribution of Request for Refund Forms. Within thirty (30) days after the Settlement receives Final Approval, the City shall distribute via first class mail the Notice of Class Action (Exhibit 2) along with the Request for Refund i Forms to all Class members at the addresses of Class members as they appear in the records available to the City. In addition, the City shall publish the Request for Refund Form on two (2) days over the course of two (2) consecutive weeks in The Miami Herald and El Nuevo Herald. 24 02-1139 4.3 Deadline for Submission of Request for Refund Forms. The Request for Refund Forms referred to in Section 4.2 above shall set forth the address to which they shall be returned. That address shall be a post office box, located in Miami, Florida, obtained by the City or its counsel, the cost of which shall be paid from the Surcharge Reimbursement Fund. Class members shall have sixty (60) days from the date the Request for Refund Forms are mailed and published to mail completed Request for Refund Forms to the City. Any Request for Refund Forms not timely submitted and/or not fully completed may be excluded in the discretion of the City. 4.4 Report on Distribution of Request for Refund Forms. Within twenty (20) days after distribution of the Request for Refund Forms, the City or its designated agent shall certify to the Court in a declaration, based on the personal knowledge of the declarant, that all Request for Refund Forms have been mailed to members of the. Class, and that the Request for Refund Form has been published in the manner described herein, and shall serve a copy of the declaration filed with the Court on Class Counsel. In this declaration, the City or its designated agent shall also certify the number of Class members to whom the Request for Refund Forms were mailed. 25 02-1139 4.5 Report on Receipt of Request for Refund Forms. Within twenty (20) days after the deadline for timely submission of the Request for Refund Forms, the Administrator shall certify to the Court in a declaration, based on the personal knowledge of the declarant, the total number of Request for Refund Forms received by the City, and the total aggregate amount of Refunds represented by such Request for Refund Forms. The City shall serve a copy of the declaration filed with the Court on Class Counsel. 4.6 Verification of Request for Refund Forms. The City will verify the information contained in the submitted Request for Refund Form ("Form"). In the event the Form does not comport with records available to the City, the City may either disallow the refund or request additional information from the class member, at the City's discretion. 4.7 Distribution of Refund Checks. The Administrator shall distribute the Refund Checks within forty five (45) days from the receipt of a valid Request for Refund Form. Refund Checks shall be mailed via regular U.S. mail to the address designated on the Form. The City may use a single envelope to distribute Refund Checks to recipients that designate the same address. 4.8 Priority of Disbursement of Common Fund. The Administrator shall disburse the Common Fund in the following order of priority: 26 02-1139 (a) First, to pay all costs associated with the Litigation and settlement, including the costs of notice and publication of notice, and all other costs of class certification, and all fees and costs of the Administrator, Class Representative and Class Counsel, including attorney fees; (b) Second, pro rata to any Settling Class Member who has timely filed a refund claim, in accordance with the Agreement, for any Surcharge paid by the Settling Class Member at any parking facility owned or operated by the County for any portion of the period beginning on September 1, 1999, and ending on September 30, 2002, until the Settling Class Member has recovered the entire amount of the Surcharge so paid; and (c) Third, pro rata to any Settling Class Member who has timely filed a refund claim, in accordance with the Agreement, for any Surcharge paid by the Settling Class Member at any parking facility (other than a parking facility owned or operated by the County) for any portion of the period beginning on September 1, 1999, and ending on September 30, 2002, until the Settling Class Member has recovered the entire amount of the parking surcharge so paid; and (d) The balance (if any) to the City. 4.9 Report on Refund Checks. Within twenty (20) days after the deadline for distribution of the Refund Checks, the Administrator shall certify to 27 02-1139 the Court in a declaration, based on the personal knowledge of the declarant, the total number of Refund Checks distributed by the City, and the total aggregate amount of Refunds represented by such Refund Checks. The City shall serve a copy of the declaration filed with the Court on Class Counsel. 4.10 Disposition of Unclaimed Amount in Common Fund. The City shall be entitled to retain for its own use all amounts allocated to the Common Fund which are not 1) awarded by the court as reasonable attorneys fees and costs; 2) paid by the City for cost of approving and administering settlement; 3) paid as refunds to members of the Class; and 4) paid to the Administrator or class representative. 4.11 Responsibility for Inquiries of Notice Class Members. The Administrator shall respond to questions from the Notice Class members concerning the criteria for distribution of Refunds. Nothing herein shall preclude Class Counsel from responding to inquiries from Notice Class members. V. RELEASES 5.1 Release and Covenant Not to Sue. Upon Final Approval, and by not electing to be excluded from the Class, each Class member agrees to forever release, remise, acquit, satisfy and discharge City of and from any and all, and all manner of action and actions, cause and causes of action, accounts, agreements, 28 02-1139 bills, bonds, claims, contracts, controversies, covenants, damages, debts, demands, dues, executions, judgments, liability, liens, promises, reckonings, specialties, suits, sums of money, trespasses and variances whatsoever, equitable, legal and administrative relief, whether based on federal, state or local law, statute or ordinance, regulation, contract, common law, or any other source, including any claims relating to federal or state law, that have been, could have been, may be or could be alleged or asserted now or in the future by McGrath, the County and any Class member against City as to the Claims, or in any other court action or before any administrative or governmental body or agency (including any federal or state regulatory commission), tribunal, arbitration panel or self-regulatory organization on the basis of, connected with, arising out of, or related to, in whole or in part: (a) All causes of action arising from City's application of the Ordinance to collect parking surcharges for motor vehicles within the City of Miami as well as any and all claims in connection with the Ordinance and collection of surcharge by the County; and (b) Any or all of the acts, omissions, facts, matters, transactions or occurrences that were directly or indirectly alleged, asserted, described, set forth or referred in, or related to, the Claims, including without limitation, the facts, events and circumstances that are the basis of the allegations set forth in the Claims. 29 02-1139 By not electing to be excluded from the Class, each Class member expressly agrees that he or she, acting individually or together, shall not seek to institute, maintain, prosecute, sue or assert in any action or proceeding any action or actions, cause and causes of action, or claim on the basis of, connected with, arising out of, or related to, in whole or in part any of the Claims, including without limitation, any or all of the acts, omissions, facts, matters, transactions or occurrences that were directly or indirectly alleged, asserted, described, set forth or referred in, or related to, the Litigation, including without limitation, the facts, events and circumstances that are the basis of the allegations set forth in the Litigation. Nothing herein shall preclude any action to enforce the terms of the Agreement. In connection with this release and covenant not to sue, the Class members, through the Class Notice, acknowledge that they are aware that they may hereafter discover facts, claims and causes of action presently unknown or unsuspected, or facts in addition to or different from those which they now know or believe to be true with respect to the matters released herein. Nevertheless, it is the purpose of the Agreement and the intention of Settling Plaintiffs and the Class members to settle and release all such matters, and all actions, causes, causes of action, claims, and Unknown Claims (as defined below) relating to the subject matter of the 30 02-1139 Claims, which exist, hereafter may exist, or might have existed (whether or not previously or currently asserted in any action). "Unknown Claims" means and includes those claims that any Class member does not, for whatever reason, know or suspect to exist in his or her favor at the time of the release of the City and that, if known by him or her, may have materially affected his or her decision to settle or not to object to this Agreement. The Class members expressly understand and agree that except for the -exclusion of unsettled claims addressed below in Paragraph 5.2, the Agreement releases all claims arising prior to the execution of the Agreement of every nature and kind whatsoever, whether known to them or not. VI. CONFIRMATORY DISCOVERY 6.1 Confirmatory Discovery. The City will make available to Class Counsel information reasonably necessary to verify the composition of the Class, and the adequacy, reasonableness and fairness of the amounts, entitlement and distribution of Refunds to members of the Class. VII. MISCELLANEOUS PROVISIONS 7.1 Use of Agreement. The Agreement is entered into for purposes of settlement of all Claims. All settlement communications between the Parties which occurred before the Agreement is executed by the Parties, or which occur 31 02-1139 afterward, shall not be used in this or any other proceeding for any purpose whatsoever, unless the Parties agree in writing to the contrary. 7.2 Agreement No Admission. The Agreement reflects, among other things, the compromise and settlement of all claims arising out of the Claims which occurred during the Class Period. The Parties agree that neither the Agreement, nor any document referred to in the Agreement, nor any action taken to carry out the Agreement is, may be construed as, or may be used as, an admission or concession by or against the City or any other Party concerning any alleged fault, wrongdoing, or liability whatsoever. 7.3 Cooperation Between the Parties. The Parties shall cooperate fully with each other, and shall use their best efforts to obtain the Court's Preliminary Approval and Final Approval of the Agreement and all of its terms. 7.4 Written Notice to Parties. Where any Party's exercise of any right or discharge of any responsibility under the Agreement requires written notice, the Party shall serve such written notice on all other Parties as follows: To City: The City of Miami 3500 Pan American Dr. Miami, FL 33233 To City's Counsel: Alejandro Vilarello, Esq. Maria Chiaro, Esq. 444 S.W. 2nd Avenue, Suite 945 Miami, Florida 33130-1910 32 02-1139 Joseph H. Serota Weiss Serota Helfman Pastoriza & Guedes, P.A. 2665 South Bayshore Dr. Suite 420 Miami, FL 33133 To County: Miami -Dade County, Florida Stephen P. Clark Center Suite 2810 111 N.W. 1st Street Miami, FL 33128-1993 To County's Counsel: Jess McCarty, Esq. Stephen P. Clark Center Suite 2810 111 N.W. 1st Street Miami, FL 33128-1993 To Settling Plaintiffs: Patrick McGrath c/o KORGE & KORGE, P.A. 230 Palermo Avenue Coral Gables, Florida, 33134 jo Class Counsel: KORGE & KORGE, P.A. 230 Palermo Avenue Coral Gables, Florida, 33134 BOIES, SCHILLER & FLEXNER, P.A. 100 S.E. 2nd Street Suite 2800 Miami, FL 33131 33 02-1139 7.5 Governing Law. The Agreement is intended to, and shall be governed exclusively by, the laws of the State of Florida, without regard to choice -of -law principles, except as may otherwise be provided for herein. 7.6 Entire Agreement. No representations, warranties, or inducements have been made to any of the Parties to the Agreement, other than those representations, warranties, and covenants contained in the Agreement. The Agreement and the exhibits attached hereto constitute the entire agreement between the Parties with regard to the subject matter contained herein, and all prior and contemporaneous negotiations and understandings between the Parties shall be deemed merged into the Agreement. No waiver, modification, or amendment of the terms of the Agreement, made before or after the Court's approval of the Agreement, shall be valid or binding unless in writing, signed by all Parties, and then only to the extent set forth in such written waiver, modification, or amendment. 7.7 Construction of Agreement. The determination of the terms and conditions of the Agreement has been by mutual agreement of the Parties. Each Party participated jointly in the drafting of the Agreement and, therefore, the terms of the Agreement are not intended to be construed against any Party by virtue of draftsmanship. 34 02-1139 7.8 Arms' Length Transaction. The Parties have negotiated all the terms and conditions of the Agreement at arm's length. The exact wording, language, form and structure of the exhibits have also been negotiated at arms' length. All terms, conditions, and exhibits in their exact form are material to the Agreement and have been relied upon by the Parties in entering into the Agreement. If any Party petitions the Court for a modification, addition, or alteration of any term, condition, or exhibit and if the Court on such request or sua sponte does not accept, modifies, adds to or alters any of the terms, conditions, or exhibits of the Agreement, the Agreement shall become voidable and of no further effect upon the filing with the Court of a Notice of Withdrawal from Settlement by any Party within three days of any order or final statement of the Court not accepting, modifying, adding to, or altering any of the terms, conditions or exhibits of the Agreement. 7.9 Binding Effect. The Agreement shall be binding upon, and inure to the benefit of, the Parties as defined herein, and their respective heirs, successors and assigns. The individuals signing the Agreement on behalf of the City hereby represent and warrant that they have the power and authority to enter into the Agreement on behalf of the City, on whose behalf they have executed the Agreement, as well as the power and authority to bind the City to the Agreement. 35 02-1139 The individuals signing the Agreement on behalf of the County hereby represent and warrant that they have the power and authority to enter into the Agreement on behalf of the County, on whose behalf they have executed the Agreement, as well as the power and authority to bind the County to the Agreement. Class Counsel executing the Agreement represent and warrant that they have the authority to enter into the Agreement on behalf of Settling Plaintiffs, and binds Settling Plaintiffs. 7.10 Waiver. Any failure by any Party to insist upon the strict performance by any other Party of any of the provisions of the Agreement shall not be deemed a waiver of any of the provisions of the Agreement, and such Party, notwithstanding such failure, shall have the right thereafter to insist upon the specific performance of any and all of the provisions of the Agreement. 7.11 When Agreement Becomes Effective; Counterparts. The Agreement shall exist and become effective only upon its execution by the City, the County and Class Counsel for Settling Plaintiffs. The Parties may execute the Agreement in counterparts, and execution in one or more counterparts shall have the same force and effect as if all Parties had signed the same instrument. If any provision of the Agreement is held by a court of competent jurisdiction to be void, 36 Q2-1139 voidable, unlawful, or enforceable, the remaining portions of the Agreement will remain in full force and effect. 7.12 No Third Party Beneficiaries. The Agreement shall not be construed to create rights in, or to grant remedies to, or delegate any duty, obligation or undertaking established herein to any third party as a beneficiary to the Agreement, except for Class Counsel. 7.13 Further Acts. Each Party, upon the request of the other Party hereto, agrees to perform such further acts and to execute and deliver such other documents as are reasonably necessary to carry out the provisions of the Agreement. 7.14 Captions. The captions or headings of the sections and paragraphs of the Agreement have been inserted for convenience of reference only and shall have no effect upon the construction or interpretation of any part of the Agreement. 7.15 Continuing Jurisdiction. The Court shall retain jurisdiction over the interpretation and implementation of the Agreement, as well as any and all matters arising out of, or related to, the interpretation or implementation of the settlement or Agreement. 7.16 Facsimile Signatures. Any Party may execute the Agreement by signing their name on the designated signature block below, and transmitting that 37 02-1139 signature page via facsimile to Class Counsel. Any signature made and transmitted by facsimile for the purpose of executing the Agreement shall be deemed an original signature for purposes of the Agreement, and shall be binding upon the Party transmitting their signature by facsimile. ©2--1139 7.17 Conflicts. In the event of conflict between the Agreement and any other document prepared pursuant to the settlement, the terms of the Agreement shall control. CITY OF MIAMI 0 Carlos Gimenez, City Manager Approved as to form and, content. MIAMI-DAPE COUNTY, FLORIDA Steven Shiver, County Manager Approved as to form and content: SETTLING PLAINTIFFS Patrick McGrath III, individually and on behalf of the Class Thomas J. Korge, Esq. Counsel for Settling Plaintiffs Mark J. Heise, Esq. A2--1139 Alonso, Elvi G. 20 From: Chiaro, Maria Sent: Wednesday, October 02, 2002 5:59 PM To: Alonso, Elvi G. Subject: Discussion regarding Parking Surcharge Litigation Importance: High Sensitivity: Confidential The City Attorney requests that an item related to the lawsuit regarding the parking surcharge filed by Patrick McGrath, Metro Dade County, et. al. against the City of Miami be added to the City Commission agenda for October 10, 2002. 02-1139