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HomeMy WebLinkAboutSubmittalCITY OF MIAMI OFFICE OF THE CITY ATTORNEY MEMORANDUM TO: The Honorable � ayor .. d Members of the City Commission FROM: Jorge L. Ferna • : , ' ity Attorne}t' DATE: May 10, 2006 RE: PH 4 and 5 — Orange Bowl Repairs Contract Attached is a summary of the oral report which, as Chairman Gonzalez directed, will be presented to the City Commission at 11:00 am on Thursday, May 11, 2006 at its regular meeting. Also, attached is the curriculum vitae of Bruce Rogow, Esquire who has been retained, as directed by the City Commission, to present the report. JLF/MJC/tpr Enclosure(s) cc: Joe Arriola, City Manager Priscilla A. Thompson, City Clerk Elvi G. Alonso, Agenda Coordinator Submitted Into the public record in connection with item P_— 4 S on Priscilla A. Thompson City Clerk 38829 THE HAMMES MATTER 7 tb �- ru � . C/, • The May 9, 2005 Contract between the City and Hammes Sports Development of)'-",- - �$' Florida LLC is null. and void because the City did not authorize any contract with Ae se w that entity. • • The March 10, 2005 Resolution authorized an agreement only with Hatnmes of Wisconsin. The change in the contracting company was not a change in "form." It was a fundamental alteration of an essential part of the contract that could not occur without explicit City Commission authorization. • Hammes Wisconsin and. Hammes Florida acted at their peril in substituting a new entity. "[O]ne who contracts with a municipality is bound to know the limitations of the municipality's contracting authority, and if a municipality makes a contract that i.s ultra vires, no liability accrues...." 12A Fla. Jur.. 2d, Counties and Municipal Corporations, § 259. • The Hammes Fiorida/Han2mes Wisconsin Complaint admits that there was no authority to contract with Hammes Florida by alleging in its mandamus count (¶ 75) that the City Manager had a "clear legal duty under the March 10, 2005 Resolution" to execute a contract "in substantially the form attached to the March 10, 2005 Resolution." That meant only Hammes Wisconsin because that was the party named in the contract attached to the Resolution. • Having been hoodwinked by Hammes Wisconsin, rescission of the March 10, 2005 Resolution was/is a proper response. • The evidence of Hammes Wisconsin's disingenuousness is apparent from its actions and allegations: (1) Even its Complaint does not allege that it mentioned its intention to switch entities. Paragraph 22 says the City employees should have noticed the change, confirming the conclusion that the change was never discussed. (2) The April 26, 2005 letter from Hammes Wisconsin's counsel speaks of a "clean draft" but never mentions changes other than the three substantive areas that were being discussed. (3) The Florida LLC was formed only 8 days before sending that "cllean draf" letter and the principals of the new Florida LLC, Messrs. Dunn and Zadra, were copied on the letter but never disclosed their dual roles in IIaznmes Wisconsin and Hammes Florida. (4) E-Mails from Messrs. Dunn and Zadra, subsequent to May 9, 2005, reflect Submitted Into the public record in connection with item IN-S on 5-11-0L Priscilla A. Thompson City Clerk only their Hammes Wisconsin role, never signing as Hammes Florida even when asking "Is the Contract signed?" (Zadra, May 17) and "l am told the Project •Management Agreement is signed...." (Dunn, May 23). CONCLUSIONS * No Contract with Hammes Florida. • Failure to Notice changed. entity unfortunate, but does not result in City being bound by unauthorized agreement. w Rescission. of the March 10, 2005 Resolution a proper response. • Payment for any past work by Hammes Wisconsin depends on understandings between the parties.- • Any new contractor must be unformed of present litigation with Hammes. Submitted Into the public record in connection with item 14• S on 5-11-Dto Priscilla A. Thompson City Clerk BRUCE ROGOW Brice Rogow has been a professor of law at Nova Southeastern University Law Center in Fort Lauderdale, Florida, since 1974..In 1978-79, he was co -dean of the Law Center, and in 1984, Acting Dean. Before joining Nova, he was on the faculty at the University of Miami. Mr. Rogow has taught Civil Procedure, Federal Jurisdiction, Constitutional Law, Appellate Practice, Criminal Law and Legal Ethics. in addition to teaching, Mr. Rogow has litigated extensively over the past 40 years. He has argued hundreds of civil and criminal cases in federal and state appellate courts, including eleven cases in the Supreme Court of the United States. He was Supreme Court counsel in Beach v. Ocwen Federal Bank, Seminole Tribe v. State of Florida, Florida Bar v. Went For it Inc,, Campbell v. Acuff -Rose, Argersinger v. Hamlin, Gerstein v. Pugh, Ingraham v, Wright, Mathews v. Diaz, Davis v. Scherer, co -counsel in Fuentes v. Shevin, and was appointed by the Supreme Court to represent the petitioner in Francis v. Henderson. In two cases, Waldron v. United States, and Arthur v. Hillsborough County, the Supreme Court granted certiorari and reversed the decisions below without argument. In the 2000 Presidential election litigation, he was counsel in the Supreme Court for the Pahn Beach County Canvassing Board in Bush v. Palm Beach Co. Canvassing Bd. Mr. Rogow has been listed in every edition of The Best Lawyers In America for the past nineteen years, and is one of the few lawyers in the United States, and the only lawyer in Florida., to be named in Criminal Law and First Amendment Law. in the newest edition of The Best Lawyers in America he has beennamed in three categories: Appellate Law, Commercial Litigation and First Amendment Law. He is one of three lawyers in Florida to have been Board Certified in both civil and criminal appellate law and was elected to the American Academy of Appellate Lawyers. 1VJr. Rogow is also a Fellow of ti,7e Aineaiean College of Trial Lawyers. Mr. Rogow has also won numerous awards over the years for his public service, litigation, and teaching. In June 2000, he was awarded the. James C. Adkins Award, given to Florida's outstanding appellate jtuists or practitioners. He was the first practicing lawyer to receive the award. Mr, Rogow has represented governmental entiti.es, public officials, judges, law firms, lawyers (including F. Lee Bailey), and corporations in major trial and appellate work. He presently represents Morgan Stanley in its appeal of a S 1.5 billion judgment entered against it in West Palm Beach. In 1995 he secured the reversal of a $52 million judgment against Florida's largest sugar companies, and the reversal of a $1.7 million contempt judgment against an attorney. In 1993 and 1994 he won Florida Supreme Court victories for a mayor denied municipal pension benefits, and for a special taxing district denied self-governing authority. In 1997 he reversed a million dollar federal. judgment against Palm Beach County. In. 1998 he obtained reversal of an order quashing charging liens, allowing lawyers to pursue their claims to 25% of Florida's $11 billion tobacco settlement. In 1996 his Florida Supreme Court victory for a brain damaged child. led to a $9 million settlement and in 1998 he was appellate counsel in a civil rights case against the State which was settled for $17.75 million. In July 1999, he obtained a federal appellate affirmance establishing Indian Tribes' immunity from suits by the State tmdcr the Indian Gaming Regulatory A.ct. In February and March 2006 he reversed a class action against Wyeth Pharmaceuticals and Submitted into the public record in connection with l item PIA.. 5 on - Priscilla A. Thompson City Clerk obtained a jury defense verdict in a $25 million. suit against Jet Aviation International, Inc. and Hirschman Industrial Holdings, Ltd., major A.rnerican and Swiss companies. In Nov. - Dec. 2000 he represented Palm Beach County Supervisor of Elections Theresa LePore and the Palm Beach County Canvassing Board in numerous cases in. the United States District Court for ,the Southern. District of Florida, tb.e United States Court of Appeals for the Eleventh Circuit, the Supreme Court of the United States and the Supreme Court of Florida. In July 2000, he obtained a federal permanent injunction against enforcement of the Miami -Dade County "Cuba Affidavit," which required applicants for cultural grants to swear they had no ties to any Cuban nationals. He successfully defended Palm Beach County on appeal in a Title VII employment discrimination case in April 2000; and in 1999, be won a defense decision for the City of Boca Raton in United States district court in. the first trial under the Florida Religious Freedom Restoration Act of 1998; a decision affirmed by the United States Court of Appeals in 2005_ Earlier, he successfully defended tbe Chief of. the Seminole Tribe of Florida against federal and state Endangered Species Act criminal charges for killing a Florida panther on the Reservation, and 2 .Live Crew in their federal and state obscenity trials and appeals. He obtained the acquittal of a South Florida mayor charged with theft in office. He successfully represented the Cuban Museum against the City of Miami's attempt to evict the Museum for its artists' political views, obtaining a federal injunction against tbe City. He also obtained the first federal court appellate decision declaring that a musical work was not obscene. His Supreme Court success in Campbell v. Acuff -Rose Music established copyright protections for conunercial parodies. Among Mr. Rogow's successful criminal appeals are Pizzo v. State (Fla. 2d DCA 2005)(reversing fraud convictions); Billie v. State (Fla. 3d DCA 2003) (reversing second degree murder conviction and life sentence); Hebei v. State (Fla. 2d DCA 2000) (reversing conviction and 12-year sentence for sexual battery) (in February 2001, he tried the case in Arcadia, Florida, and obtained an acquittal); United States v. Arnold, 117 F.3d .1308 (11th Cir. 1997) (reversed money laundering and Travel Act and conspiracy, forl3racip violation); United States v. Kramer, 73 F.3d 1067 (l lth Cir. 1996) (reversed money laundering conviction. and 20 year sentence, reversed $9 million forfeiture); DeFreitas v. State, 701. So. 2d 593 (Fla. 4th DCA. 1997) (reversed agg. assault w/ .firearm for prosecutorial misconduct; fundamental error). Over the years Mr. Rogow has handled numerous criminal trials and appeals as well as federal habeas corpus proceedings and appeals, and has been appointed by the Florida Supreme Court to represent indigent prisoners. Mr. Rogow b.as served as a consultant to lawyers and legal aid organizations, and as an expert witness on attorneys' fees; has lectured to judges and lawyers; writes, and has been President of the Legal Aid Society of. Broward County, Florida, and Special Counsel for the American Civil Liberties Union Foundation of Florida, Special Counsel to The Florida Bar and a Special Assistant Attorney General. Mr. Rogow's professional career began in 1965-66 when he was staff counsel for the Lawyers' Constitutional Defense Committee, representing civil rights workers in Mississippi, Alabama and Louisiana. 2 Submitted Into the public record in connection with item 141.5 on 5-t1_0 Priscilla A. Thompson City Clerk