HomeMy WebLinkAboutR-92-0454J-92-446
6/10/92
RESOLUTION NO. :- 2 _ 154
A RESOLUTION INCREASING THE MAXIMUM
COMPENSATION SET BY RESOLUTION NOS. 86-401,
88-991 and 90-439 BY AN ADDITIONAL $50,000.00
TO ATTORNEYS JOSEPH Z. FLEMING, PARKER THOMSON,
AND GARY HELD, AT AN HOURLY RATE OF $50.00, AS
COMPENSATION FOR LEGAL SERVICES RENDERED AS
SPECIAL COUNSEL IN DEFENDING THE CITY OF MIAMI
AND INDIVIDUAL CITY COMMISSIONERS THROUGH TRIAL
STAGE, APPELLATE PROCEEDINGS AND ADMINISTRATIVE
HEARINGS IN CONNECTION WITH ZONING/COMPREHEN-
SIVE NEIGHBORHOOD PLAN RELATED LAWSUITS
INVOLVING PROPERTY LOCATED AT 3471 MAIN HIGHWAY
(A/K/A "COMMODORE BAY") MIAMI, FLORIDA; SAID
FUNDS TO BE PAID FROM THE CITY'S INSURANCE AND
SELF INSURANCE TRUST FUND.
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/Petitioners"S. 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
CITY COVMSSION
MEETING OF
J U I. 0 9 1992
Soaoludoa 210.
92-- 454
WHEREAS, Resolution No. 90-439 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, Resolution No. 90-439 also recognized the
contribution of Cary Held, Esquire, to the City's defense team in
the subject litigation and authorized his compensation as Special
Counsel; and
WHEREAS, the Plaintiffs/Petitioners also initiated an
intense and costly challenge to the City's newly adopted
Comprehensive Neighborhood Plan 1969-2000 ("Comprehensive Plan");
and
WHEREAS, the defense of the City and City Commissioners in
said litigation relative to the Commodore Bay Property has
consumed hundreds of man-hours, involved several law firms, and
has been pursued in the Circuit Court, Appellate Division of the
Circuit Court, Third District Court of Appeal, Federal Court, and
the Florida Division of Administrative Hearings; and
WHEREAS, the subject litigation is presently still pending
in Federal court and the Florida Division of Administrative
Hearings; and
WHEREAS, the Plaintiffs/Petitioners subject lawsuits involve
a monetary claim of $30 Million, challenges the legislative
authority of the City Commission, and seek to hold individual
City Commissioners personally liable for alleged improper
actions; and
-2- g 2--- 454
r
LE
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, the Plaintiffs/Petitioners have continued their
attack in the State of Florida Division of Administrative
Hearings on the State of Florida's approval of the City of
Miami's most recently adopted Comprehensive Neighborhood Plan's
designation of the Plaintiffs'/Petitioners' Commodore Bay
Property; and
WHEREAS, the City's Motion for Summary Judgment is pending
in Federal Court before the Honorable Judge Stanley Marcus, and
will undoubtedly go to trial and/or appellate review, depending
on Judge Marcus' decision; and
WHEREAS, the subject litigation regarding the Commodore Bay
Property is now in its sixth year, and continues to consume many
hours of legal defense representation by Special Co -Counsel and
the City Attorney's Office; and
WHEREAS, the case at various times has involved as many as
six private law firms and the City Attorney's Office at the same
time; and
�! WHEREAS, potential exposure to the City remains great until
the last court rules on this matter in the City's favor; and
WHEREAS, there has been and will continue to be countless
y � �
hearings, pleading preparations, brief preparations, oral
arguments, meetings, and requisite research in addition to the
!?' time spent in the above activities; and
-3-
92- 454
1
WHEREAS, the City Attorney has advised the City Commission
of the superior quality of Joseph Z. Fleming, Parker Thomson, and
Gary Held's representation of the City to date on this subject
case; and
WHEREAS, the City Commission hereby recognizes, acknowledges
and applauds the highly competent and successful representation
heretofore provided on a modified pro bono basis by Messrs.
Joseph Fleming, Parker Thomson, and Gary Held; and
WHEREAS, the funds 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. 90-
439, they have continued to provide extremely competent and
dedicated legal services to the City, pending authorization for
additional funds by the City Commission;
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 hereby adopted by reference
thereto and incorporated herein as if fully set- forth in this
Section.
Section 2. The maximum compensation authorized by
Resolution No. 86-401, adopted May 22, 1986, as amended by
Resolutions 88-991 and 90-439, for payment to the law firms of
Joseph Z. Fleming, Parker Thomson and Gary Held for legal
-4-
92-- 454
e�
021
services rendered as Special Co -Counsel in connection with land
use matters involving 3471 Main Highway, Miami, Florida, is
hereby increased by an additional $50,000, with the hourly rate
remaining at a modified pro bono rate of $50.00 per hour, for
defending the City of Miami and individual City Commissioners, as
applicable, through trial stage, appellate proceeding and
administrative hearings, with funds to be paid from the City's
Insurance and Self Insurance Trust Fund.
Section 3. This Resolution shall become effective
immediately upon its adoption.
PASSED AND ADOPTED this gth day of
ATTE :
MATT HIRAI
CITY CLERK
PREPARED AND APPROVED BY:
+�z/(
L E. MAXWELL
C EF ASSISTANV CITY ATTORNEY
APPROVED AS TO FORM AND CORRECTNESS:
I..V0 ez
Al. QB ITiN J S, I I I
CITY ATTO Y
JEM/rm/M V000
vj1)
-5-
, 1992.
z;
BUDGETARY REVIEW:
�6
S. SURANA
S TANT CITY MANAGER
SELF-INSURANCE TRUST FUND REVIEW:
UJAN S. H , DIRECTOR
RISK A T AND SELF-INSURANCE
AND iyhRAtcd TRUST FUND
52- 454
CITY OF MIAMI. FLORIDA
INTER -OFFICE MEMORANDUMQ CAM
TO Honorable Mayor and Members
of the City Commission
,014
Qiiin
`ROM City At
6��i//
nes, III
ney
DATE June 10, 1992 FILE 3-92-446
SUBJECT Increase in Maximum
Compensation for
Special Co -Counsel
in Commodore Bay case
REFERENCES
ENCLOSURES
RECOMMENDATION
It is respectfully recommended that the City Commission
approve the attached Resolution authorizing, from the City's
Insurance and Self -Insurance Trust Fund, a $50,000 increase in
the maximum compensation which can be paid to the law firms of
Joseph Z. Fleming, Parker D. Thomson, and Gary M. Held, at an
hourly modified pro bono rate of $50.00 per hour, as compensation
for legal services rendered to the City as Special Counsel in
defending the City of Miami and individually named City
Commissioners. Said representation would continue through the
trial stage, appellate proceedings, and administrative hearings
in connection with the alleged $ 30 Million damage claims
emanating from the zoning/comprehensive neighborhood plan
lawsuits filed by Messrs. Kenneth Treister, Howard Scharlin, and
Gerald Katcher ("Plaintiffs").
BACKGRIDWD '
As you are very much aware, for more than six (6) years the
City of Miami has been embroiled in litigation with Messrs.
Kenneth Treister, Gerald Katcher, and Howard Scharlin relative to
the City Commission's March 27, 19861, denial of their zoning
application for development activity on property located at 3471
Main Highway. Not only did the Plaintiffs appeal the rezoning
denial, but they also sued the City of Miami and individual City
Commissioners who voted against their application. Furthermore,
their initial request for damages has escalated from $10 Million
to a claim of $30 Million. This escalated claim was manifested
in their now defunct Settlement Proposal transmitted to you under
cover of my predecessor's memo to you dated May 24, 1990.
92--. 454
`.4 'i
Honorable Mayor and Members
of the City Commission
June 10, 1992
Page 2
On May 22, 1986, the City Commission initially adopted
Resolution 86-401, authorizing employment of, and payment of
$50,000 to the law firms of Joseph Z. Fleming and Parker D.
Thomson as Special Counsel to assist in defending the City in
lawsuits filed by Plaintiffs. On October 27, 1988, the City
Commission adopted Resolution No. 88-991, authorizing an
additional $30,000 to the above -specified law firms for services
rendered to the City in the same litigation, at the modified pro
bono rate of $50.00 an hour. Subsequently, on June 7, 1990, the
City Commission authorized an additional $50,000 to the same
defense team, at the same rate of $50.00 per hour.
In the ensuing years this litigation has developed into one
of the most intense legal cases in which the City is involved.
In addition to the potential personal liability for individual
City Commissioners, it also has the potential, although remote,
for great monetary liability as well.
Joseph Fleming (Lead Counsel), Parker Thomson, and Gary Held
have served as Special Co -Counsel on this case, and have served
the City extraordinarily well. Working along with the City
Attorney's Office, this defense team has successfully defeated
the Plaintiffs in the Appellate Division of the Circuit Court,
and the Third District Court of Appeal. They have also obtained
Summary Judgment in the Circuit Court, which was upheld by the
Third District Court of Appeal, and placed the Petitioners in the
Comprehensive Plan Administrative Hearing process in a position
where, presumably, they no longer are confident that they can
prevail.
In the Federal case the City has filed and argued its motion
for Summary Judgment. Said motion is still pending, but
undoubtedly will result in either a full trial or protracted
appellate proceedings, regardless of the judge's decision.
All of these proceedings are proceeding unabated, and have
included the concerted efforts of numerous law firms and
governmental agencies. Plaintiffs have at one time or another
retained the services of attorneys in the City of Miami, the City
of Tallahassee, and the City of Tampa to fight the City of Miami.
In spite of the array of legal talent aligned against the City,
the City's legal defense team, has not, to date, experienced one
single setback. Messrs. Fleming, Thomson, and Held have
represented this City in an extremely competent and successful
fashion.
9 '- 454
F3
Honorable Mayor and Members
of the City Commission
N
June 10, 1992
Page 3
All of this success, of course, requires the expenditure of
time and money. In fact it has required the commitment of
hundreds of hours of research, pleadings and memoranda drafting,
meetings, consultation, depositions, and hearings on the part of
the City's defense team. Consequently, there are legal invoices,
even at the modified pro bono rate, which have accrued and will
continue to accrue, until such time as these matters are finally
resolved.
AQJ/JEM/rm/M035
Attachments
cc: Cesar H. Odio, City Manager
92- 454