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Home My WebLink AboutR-96-0306J-96-448 5/23/96 � 6 _ � O RESOLUTION N0. A RESOLUTION RATIFYING AND APPROVING THE CITY ATTORNEY'S CONTINUED ENGAGEMENT OF THE LAW FIRMS OF JOSEPH Z. FLEMING, PARKER THOMSON AND GARY HELD, AT AN INCREASED HOURLY RATE OF $175.00, AS COMPENSATION FOR LEGAL SERVICES RENDERED IN REPRESENTING AND DEFENDING THE CITY OF MIAMI AND INDIVIDUAL, CITY COMMISSIONERS, AS APPLICABLE, THROUGH ANTICIPATED OR ACTUAL TRIAL STAGES, APPELLATE PROCEEDINGS AND ADMINISTRATIVE HEARINGS IN CONNECTION WITH PROPERTY LOCATED AT 3471 MAIN HIGHWAY (A/K/A "COMMODORE BAY"), MIAMI, FLORIDA; ALLOCATING ADDITIONAL FEES THEREFOR, IN AN AMOUNT NOT TO EXCEED $35,000 FOR SUCH REPRESENTATION, FROM THE j CITY OF MIAMI SELF-INSURANCE AND INSURANCE TRUST FUND, INDEX CODE NO. 620103-661; FURTHER AUTHORIZING THE CITY ATTORNEY AND SPECIAL COUNSEL TO TAKE ALL NECESSARY LEGAL STEPS, INCLUDING INTERVENTION, IN THE NEWLY FILED KENNETH TREISTER, GERALD KATCHER AND HOWARD SCHARLIN VS. BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT FUND OF THE STATE OF FLORIDA LITIGATION (CASE NO. 96-1730). WHEREAS, the City Commission, pursuant to Resolution No. 86-401, adopted May 22, 1986, authorized employment and payment of $50,000.00 to the law firms of Joseph Z. Fleming and Parker Thomson as Special Counsel to serve the City in defending through the trial stage, lawsuits filed by Kenneth Treister, Howard Scharlin and Gerald Katcher ("Plaintiffs"), in connection with the City's denial of certain zoning applications at approximately 3471 Main Highway in Coconut Grove ("Commodore Bay Property") Miami, Florida; and WHEREAS, Resolution No. 88-991 authorized an additional $30,000 to the above specified law firms for services in the same litigation at the modified pro bono rate of $50.00 per hour; and WHEREAS, Resolution No. 90-439 authorized an additional $50,000 to the CITY CObDUSSIOItiT MEETING OF MAY 2 3 1996 Resolution No. 96- 3U6 above specified law firms for services in the same litigation at the modified pro bono rate of $50.00 per hour; and WHEREAS, Resolution No. 90-439 also recognized the contribution of Gary Held, Esquire, to the City's defense team in the subject litigation and authorized his retention and compensation as Special Counsel; and WHEREAS, the Plaintiffs also initiated, but recently finally dropped, an intense and mutually costly challenge to the City's Comprehensive Neighborhood Plan 1989-2000 ("Comprehensive Plan"); and WHEREAS, Resolution No. 92-454 authorized an additional $50,000 to the above specified law firms for services in the same litigation at the modified pro bono rate of $50.00 per hour; and WHEREAS, the defense of the City and City Commissioners in litigation relative to the Commodore Bay Property, now in its tenth (loth) year, has consumed hundreds of man-hours, involved, sometimes simultaneously, as many as seven (7) different law firms and the City Attorney's Office, and has been litigated in the Circuit Court, Appellate Division of the Circuit Court, Third District Court of Appeal, Federal District Court, Federal Court of Appeals and the Florida Division of Administrative Hearings; and WHEREAS, the Plaintiffs' initial lawsuits against the City involved a monetary claim of $30 Million, challenged the legislative authority of the City Commission, and sought to hold individual City Commissioners personally liable for alleged improper actions; and WHEREAS, to date, the City's legal team has been victorious in its defense of the individual City Commissioners and the City on all fronts; and WHEREAS, on April 1, 1996, the law firm of JOSEPH Z. FLEMING, P.A., merged with the law firms of ALLEY AND ALLEY/FORD & HARRISON, with Joseph Z. Fleming, Esq., becoming a partner in ALLEY AND ALLEY/FORD & HARRISON; and 2 - 96- 306 WHEREAS, the subject litigation is presently still pending in Federal Court; and WHEREAS, the Plaintiffs have renewed their attack on the City by recently filing a new lawsuit against the Board of Trustees of the Internal Improvement Fund of the State of Florida ("Trustees") (Case No. 96-17301, seeking to force the State of Florida, through the Trustees, to acquire the Commodore Bay pursuant to an agreement between the Trustees and the City dated October 21, 1985. That agreement regarded the release of certain deed restrictions by the Trustees relative to the construction of the Bayside Specialty Center in Bayfront Park; and WHEREAS, the real and actual interests at stake in the aforementioned new Trustee's lawsuit are very much the City's inasmuch as the Plaintiffs in this new action, Messrs. Kenneth Treister, Gerald Katcher and Howard Scharlin, are once again making allegations and seeking judicial relief which could result in an unwarranted and extraordinary cost to the City of many millions of dollars, if the City's interests are not adequately protected; and WHEREAS, the potential fiscal exposure to the City remains great until the last court rules on this matter in the City's favor; and WHEREAS, there have been, and will, undoubtedly, continue to be, countless hearings, pleading preparations, brief preparations, oral arguments, meetings, and requisite research in addition to the time spent in the above activities; and WHEREAS, the City Attorney has continually advised the City Commission of the superior quality of Messrs. Joseph Z. Fleming, Parker Thomson, and Gary Held's representation of the City on the subject cases; and WHEREAS, the City Commission hereby recognizes, acknowledges and applauds the highly competent and successful representation heretofore - 3 - 96- 306 provided during the previous ten years, on a modified pro bono basis, by Messrs. Joseph Fleming, Parker Thomson, and Gary Held; and WHEREAS, the City Commission further acknowledges the fact that the $50.00 modified pro bono fee paid to Messrs. Fleming, Thomson and Held for the ' past decade is no longer adequate in light of the general increase in litigation expenses and legal fees since 1986; and WHEREAS, the proposed $175.00 fee herein is less than the usual hourly rate for subject Special Counsel; and WHEREAS, the funds previously authorized for payment of said attorneys have been expended, creating a need for further City Commission action; and WHEREAS, although the law firms of Joseph Fleming and Parker Thomson's former associate, Gary Held, have reached the maximum levels of their authorized compensation set by Resolution No. 92-454, they have continued to I provide extremely competent and dedicated legal services to the City; NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: I Section 1. The recitals and findings contained in the Preamble to this Resolution are hereby adopted by reference thereto and incorporated herein as if fully set forth in this Section. Section 2. The City Attorney's continued engagement of Attorneys Joseph , , Z. Fleming, Parker Thomson and Gary Held, at an increased hourly rate of $175.00, as compensation for legal services rendered in representing and defending the City of Miami and individual City Commissioners, as applicable, through anticipated or actual trial stages, appellate proceedings and , administrative hearings, in connection with property located at 3471 Main Highway (a/k/a "Commodore Bay"), Miami, Florida, is hereby ratified and approved, with additional fees therefor, in an amount not to exceed $35,000 i 4 96- 306 M for such representation, from the City of Miami Self -Insurance and Insurance Trust Fund, Index Code. 620103-661. Section 3. The City Attorney and Special Counsel are hereby authorized to take all necessary legal steps, including intervention, in the newly filed case of KENNETH TREISTER, GERALD KATCHER AND HOWARD SCHARLIN VS. BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT FUND OF THE STATE OF FLORIDA litigation (Case No. 96-1730) to protect the City of Miami's interests. Section 4. This Resolution shall become effective immediately upon its adoption. PASSED AND ADOPTED this 23rd da, ATTEST WALTER OEMAN, CITY CLERK SELF-INSURANCE TRUST FUND REVIEW: FRANK K. ROLLASON, DEPUTY CHIEF CHIEF OF RISK MANAGEMENT PREPARED AND APPROVED BY: W868:JEM:BSS:mis BUDGETARY AND FINANCIAL REVIEW: �m MANOHAR S. MY ASSISTANT INAGER APPROVED AS TO FORM AND CORRECTNESS: A. Qua JON S, III CITY A TORNE 96- 306 t ' May, 16. 1996 I.00AM CITY ATTORNEYS OFFICE MIAMI, FL No. OHR7 ?, I 1 b, A98b, 0 I 1 C17V 0C '..QM'�L %0R10A I mr- INTER-OFFICE MENIORANDW CA=Z Honorable Mayor and Members ,,-t May 15, 1996 A#96_3'7 of the City Commission su9�ECT Commodore Bay, 3471 Main Highway; /J Continued Engagement of Special Legal Counsel cacti+ A. rin o e III REFERENCES ?''dew Lawsuit; Treister, et . vs. Board City Attorn . of'Trustecs of Internal In�Rrovemuitc Enc�os� yes Fund of the St to of F'loridA I As you have, over the last few days, been individually apprised by this Office, Messrs. Kenneth Treister, Howard Scharlin and Gerald matcher ("Plaintiffs"), owners of that tract of property located at approximately 3471 Main Righwaly in Coconut Grove (a/k/a "Commodore Bay'), have mounted a new, albeit oblique, legal attack on the City. 1 This dangerous new attack, which is against the Board of Trustees of the Internal Improvement i Fund of the State of Florida ("Trustees") [Cane No. 96-17301, does not specifically name the City of Miami as a party, but is nevertheless an attack on the i . The Piaifritif's are seelcing, once again, to have a court declare that the Cite of Miarni has effectively "taken" their property 1 (Commodore Bay), and force the State to purchase the site pursuant to an agreement dated October 21, 198S, between the Trustees and the City of Miami. They are also aslting the Court to j rule that a condemnation -like `quick take" occurred, allow a jury to set the property's price, and j award attorney's fees and costs pursuant thereto. The City's potential fnancial exposure in this new action is tremendous. Consequently I've acted quickly to authorize the City's Special Counsel for the last -10 years in this matter, Messrs. Joseph I Z. Fleming, Parker Thomson and Clary Held, to continue their representation of the City in this ' renewed, but not unexpected legal challenge. As you will recall, this Office and Special Counsel have continually warned about the potential detrimental legal consequences of commenting out this property because of the possibility that Plaintiffs; in the absence of a "stand -still agreement," which Plaintiffs steadfastly refused to enter, or entered and quickly repudiated, would use such comments out of context or otherwise attempt to use them to their benefit and the City's detriment. Apparently, our concerns have once again been substantiated. The attached resolution confines, ratifies and approves the City Attorney's action in continuing to engage the City's "Commodore Bay" Special Legal Counsel, Joseph Z. Fleming, Parker Thomson and Gary Held . Further, it ratifies and confirms an agreed price of $175.00 per hour for such continued engagement, up to $35,000. As you are aware, said Special Counsel has arduously and successfully defended the City and individual City Commissioners at a modified pro Bono rate of $50.00 per hour since 19$b19$b. Obviously, a decade later, an adjustment in that rate is necessary. f I'm also .asking that this Office and Special Counsel be authorized, to respond or intervene as necessary to protect the City's interest in the above discussed Treister, et. al. vs,_Baard of ;EM:W013,D6c 306 May, 16. 1996 9.02AM CITY ATTOPNEYS OFFICE MIA1tii1,PL No, 0169 P. 1/3� Hunorabls Mayor and Members May 15, 1996 of the City Commission Page 2 Trustees of the Interngl Improvement Fund of the State of Florida case and take all steps necessary to protect the City's legal rights and interests. Attachments cc: Cesar H. Qdio, City Manager (w/attachment) Joseph Fleming, Esq. (w/attachment) Gary M. Held, Esq. (w/attachment) Parker Thomson, Esq. (w/attachment) Joel E. Maxwell, Deputy City Attomey (w/attachment) 1. i- i 2 >' y6- 306 i ` AIE: :WOIIW' c