HomeMy WebLinkAboutExhibit 11 IN THE CIRCUIT COURT OF THE ELEVENTH
2 JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE
3 COUNTY, FLORIDA
4
5 CASE NOS.: 98-11208 CA 31, 05- 2117 CA
6
7 CARL L. MASZTAL, JOSEPH A. GRAUPIER
8 JUANA MARTINEZ, and
9 MARISOL FERNANDEZ, on behalf
10 of themselves and all others so
11 similarly situated (formerly known as Eva
12 Nagymihaly, et al. v. City of Miami),
13
14 Plaintiffs,
15
16 v.
17
18 THE CITY OF MIAMI, FLORIDA,
19
20 Defendant.
21 /
22
23 SETTLEMENT AGREEMENT AND RELEASE
24
25 THIS SETTLEMENT AGREEMENT AND RELEASE ("Agreement") is entered into by and
26 between CARL L. MASZTAL, JOSEPH A. GRAUPIER, JUANA MARTINEZ, and MARISOL
27 FERNANDEZ ("Plaintiffs"), on behalf of themselves and all others so similarly situated
28 (collectively referred to as the "Class")(as defined in paragraph 1.2), and the City (as defined in
29 paragraph 1.1) (the City and the Plaintiffs/Class are referred to collectively herein as the
30 "Parties"). Any references herein to Plaintiffs include the Class. The Plaintiffs have brought all
31 claims on behalf of themselves and the Class.
32 RECITALS
33 A. The purpose of the Agreement is to settle forever the Plaintiffs' claims stated in the
34 Third Amended Class Action Complaint against the City in CARL L. MASZTAL, JOSEPH A.
35 GRAUPIER, JUANA MARTINEZ, and MARISOL FERNANDEZ, on behalf of themselves and
36 all others so similarly situated v. THE CITY OF MIAMI, Eleventh Judicial Circuit in and for
37 Miami -Dade County, Case No. 98-11208 CA 31, or stated in CARL L. MASZTAL, JOSEPH A.
38 GRAUPIER, JUANA MARTINEZ, and MARISOL FERNANDEZ v. THE CITY OF MIAMI and
39 THE STATE OF FLORIDA, Eleventh Judicial Circuit in and for Miami -Dade County, Case
40 No. 05-2117 CA (referred to collectively herein as "the Litigation"), and any other claims they had,
4] have or may have against the City that could have been pled in the Litigation. The Litigation
42 challenges the Fire/Rescue Assessment for Fiscal Years 1997-1998; 1998-1999; and 1999-2000
43 and the Fire Assessment for Fiscal Years 2000-2001; 2001-2002; 2002-2003; 2003-2004;
44 2004-2005; 2005-2008 and 2006-2007 (collectively Athe Assessments") (as defined in paragraph
Case Nos. 98-11208 CA 31, 05-2117 CA
1 1.19), and the legitimacy of the purported earlier settlement of Case 98-11208 CA 31 by Eva
2 Nagymihaly, Gordon ' Willits, Kenneth Merker, and Jean and Jocelyn Prosper (referred to
3 collectively herein as the Original Plaintiffs"). All claims asserted or that could have been asserted
4 against the City or its current or former employees, officials, officers, representatives or agents in
5 the Litigation and which are relevant to the Assessments, and the purported settlement with the
6 Original Plaintiffs, are referred to collectively as the "Claims." The Parties specifically understand
7 and agree that the Claims include any and all challenges and causes of action against the City
8 with regard to Section 170.201, Florida Statutes; Ordinance No. 11584; Chapter 19.5 of the Code
9 of Miami; Chapter 166, Florida Statutes (the Municipal Home Rule Powers Act) and all
10 preliminary, initial and final assessment resolutions adopted for fiscal years 1997-1998; 1998-
11 1999; 1999-2000; 2000-2001; 2001-2002; 2002-2003; 2003-2004; 2004-2005; 2005-2006 and
12 2006-2007, including but not limited to the following Resolutions: 98-34; 98-325; 98-419; 98-773;
13 98-817; 98-885; 99-433; 99-689; 00-669; 00-803; 01-589; 01-818; 02-823; 02-1025; 03-748; 03-
14 1014; 04-0452; 04-0597; 04-0748; 05-0431; 05-0548; 06-0431; and 06-0543, and the proper
15 remedies and the effect of these statutes, ordinances, chapters, and resolutions as related to the
16 issues in the Litigation, and the purported settlement with the Original Plaintiffs. The claims also
17 include any existing or potential claims Plaintiffs or the Class may have had or has against the
18 City or the City's current or former employees, officials, officers, representatives, or agents with
19 respect to the Litigation.
20 B. Nothing herein is intended to waive, extinguish, or release any claims of the Class or
21 any component or portion of the Class (including fiscal year 1999-2000), Plaintiffs, or the City
22 against the Original Plaintiffs or the law firm of Adorno & Yoss, or against any person or entity not
23 specifically included herein, such as Peter Clancy, Judy Clark, Tenants and Taxpayers United for
24 Fairness, Inc., TTUFF, Inc., or other, whether sounding in tort, contract or other, and including
25 any recovery of attorneys' fees paid by the Class or other claims, and regardless of subject
26 matter, including but not limited to malpractice, breach of fiduciary duty, or other.
27 Nothing herein is intended to waive, extinguish, or release any claims of the Class,
28 Plaintiffs, or the City that are currently on appeal with the Third District Court of Appeal, arising
29 out of the Parties' Motions to Set Aside Settlement, the March 17, 2006 Order, and the Final
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1 Judgment and Amended Final Judgment arising there from, to include Case No, 3D06-1259, and
2 Consolidated Case Nos. 3D06-920; 3D06-924; 3D06-947; 3D06-1046; 3D06-1055; and 3D06-
3 1255.
4 Nothing herein is intended to waive, extinguish, or release the City's right to execute on
5 funds due and owing by the Original Plaintiffs, Adorno & Yoss, Tenants and Taxpayers United for
6 Fairness, Inc., or TTUFF, Inc., pursuant to the March 17, 2006 Order, and the Final Judgment
7 and Amended Final Judgment arising there from, or other.
8 C. Plaintiffs, on behalf of themselves and the Class and its members, and the' City enter
9 into this Agreement on behalf of themselves, and all of their former or current heirs, agents,
10 employees, representatives, administrators, executors, conservators, officials, officers, and
11 assigns, as applicable and without limitation. If, and only if, the Agreement receives "Final
12 Approval" (as defined in paragraph 1.8), will the City, Plaintiffs, and Class Members (as defined in
13 paragraph 1.2) be deemed to have entered into this Agreement on behalf of themselves, and all
14 of their qualified successors (as defined in paragraph 1,18).
15 D. In the Litigation, the Plaintiffs challenge, among other things, the validity and
16 applicability of the Assessments enacted by the City, separately as to each fiscal year, through
17 the statutes, ordinances, chapters, and resolutions discussed and listed in paragraph A.
18 E. In the Litigation, Plaintiffs seek judgment ordering the City to provide a Refund, plus
19 interest, attorneys' fees and costs to the Class (referred to as "the refund portion" of the
20 Litigation). The amount of the Refund owed, if any, has never been determined by any Court.
21 There is dispute between counsel for the City and counselfor the Class as to that amount. As a
22 consequence of this settlement the Court will not make any determination of the amount of the
23 Refund owed. However, the Court will rule on the fairness of this settlement. If the Court does
24 not determine that the settlement is fair and adequate, the Final Approval referenced in
25 paragraph 1.8 cannot occur. Plaintiffs also seek declaratory relief as to the apportionment of the
26 Assessments among various property categories (referred to as "the apportionment portion" of
27 the Litigation). The City contends that the apportionment of the Fire/Rescue Assessment and
28 the Fire Assessment is lawful. As a consequence of this settlement, the Court will not resolve
29 the claims relating to apportionment. Nothing in this settlement is intended to operate as a
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1 defense to any claims brought by the Class or any component or portion of the Class (ar any
2 portion thereof, such as the taxpayers of a specific fiscal year) or the City against the Original
3 Plaintiffs, Adorno & Yoss, Judy Clark, Peter Clancy, TTUFF, Inc., Tenants and Taxpayers United
4 for Fairness, Inc., or others.
5
F. Each of the Parties has conducted substantial investigation, recognizes that the
6 issues presented are unlikely to be resolved without further extensive and costly litigation and
7 that such further litigation will cause inconvenience, distraction, disruption, delay, and expense
8 disproportionate to the potential benefits of the continued litigation. Each of the Parties has
9 taken into account the risk and uncertain outcome inherent in any litigation. Also material is the
10 fact that the Parties hereto are the City and its taxpayers who, in a manner of speaking, sue
11 themselves.
12 G. Throughout the Litigation, the City has denied the substantive allegations made by
13 the Plaintiffs and has denied any and all liability and damages to anyone with respect to the facts
14 or causes of action alleged in the Litigation, and the City continues to do so. The City waives
15 none of its defenses, including those founded on the statute of limitations. Nevertheless, without
16 admission or concession of liability or damages by the City, the City and the Class desire to
17 settle the Claims on the terms and conditions set forth in this Agreement in order to avoid the
18 burden, expense and uncertainty of continuing the Litigation; to avoid the diversion of City
I9 resources and personnel required by continuing to litigate; and to put to rest all claims, actions,
20 or proceedings that have been, or could have been, brought or asserted in this Litigation, which
21 are based upon any of the facts, circumstances or conduct alleged in the Litigation. The Parties,
22 therefore, have determined that it is desirable and beneficial to settle the claims in the manner
23 and upon the terms and conditions set forth in this Agreement.
24 H. Class Counsel (as defined in paragraph 1.4) have analyzed and evaluated the merits
25 of the Claims against the City in the Litigation and the effect of this Agreement on the members
26 of the Class. Class Counsel is aware that the City has asserted defenses relating to liability for
27 fiscal year 1999-2000 through 2006-2007 and to the amount of refund owed, if any, as to all
28 years. The City might prevail before, at or following trial on some or all of these defenses. As a
29 result some ar all members of the Class might receive no benefit or consideration for the claims
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1 asserted in this Litigation. Based upon analysis and evaluation of a number of factors, including
2 the City's defenses with respect to entitlement to a refund, the varying issues relating to the
3 statute of limitations which the City asserts bars all refund claims for fiscal years 1999-2000,
4 2000-2001, and 2001-2002, and some claims for 1999-2000 through and including 2006-2007,
5 the amount of refund owed, the lapse of time from the original filing of the action, the continued
6 reduction by the City in the amount of Fire Assessment, the difficulty of proof of claim that grows
7 with the further passage of time, the possible pursuit of further claims against Original Plaintiffs,
8 Adorno & Yoss, Tenants and Taxpayers United for Fairness, Inc., TTUFF, Inc., Judy Clark, Peter
9 Clancy, and/or others, and recognizing the'substantial risks of continued litigation, including the
10 possibility that the claims, if not settled now, might result in no recovery or less recovery for the
11 Class than this settlement, or that receipt of funds without this settlement might be greatly
12 protracted, Plaintiffs and Class Counsel are satisfied that the terms and conditions of the
13 Agreement are fair, reasonable and adequate, and that this settlement is in the best interest of
14 the Class.
15 I. This Agreement is the result of repeated, extensive, arms -length negotiations between
16 counsel for the City and counsel for the Plaintiffs and the Class. That evaluation included
17 extensive meetings with experts and various witnesses, examination of tens of thousands of
18 pages of documents, mediation and joint consultation with a professional, independent, third
19 party class action fund administrator.
20 J. This Agreement will be presented for the consideration and approval of the City
21 Commission for the City of Miami at a public meeting on July 26, 2007, with proper advance
22 notice provided to the public. Class counsel and a representative of the Third Party
23 Administrator will be present at the July 26, 2007 meeting to further address and respond to
24 inquiries, provided that same is not inconsistent with further prosecution of the litigation should
25 this Settlement not become final.
26 In consideration of the promises and of the mutual covenants hereinafter set forth, and
27 all other good and valuable consideration, receipt and sufficiency of which are hereby
28 acknowledged, the Parties hereby enter into this Agreement:
29 I. DEFINITIONS
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1.1 City. "City" means the Defendant, herein, the City of Miami, a municipal corporation,
2 and all of its departments, and former and current employees, agents, representatives, officials,
3 officers, and instrumentalities. The term 'City" excludes all persons or entities identified in
4 paragraphs 1.20, 1.21, 1.22 or 1.23.
5 1.2 Class or Class Member. Class" or "Class member" shall mean all persons or
6 entities (including qualified legal successors as defined in paragraph 1.18) that owned property
7 in the City and paid the Fire/Rescue Assessment and/or Fire Assessment collected by the City
8 from fiscal year 1997-1998 through and including fiscal year 2006-2007. The City also is
9 excluded from the Class. However, the City's former and current employees, agents,
10 representatives, officials, officers, and their immediate family members, standing in their
11 individual capacity as property owners that paid the Assessments, are not.
12 1.3 Class Action Administrator. "Administrator" means the independent third party
13 Administrator, Epiq Systems, 1441 Brickell Avenue, Suite 1018, Miami, Florida 33131 (786-709-
14 2200), which was mutually agreed upon by the Parties, or such other Administrator as is
15 appointed by the Court.
16 1.4 Class Counsel. "Class Counsel" means Richard L. Williams, Esq., Michael Garcia-
17 Petit, Esq., and Patrick A. Scott, Esq.
18 1.5 Class Notice. "Class Notice" or "Notice" means the notice to be published and sent
19 to the Class pursuant to paragraphs 3.3 and 4.2, as approved by the Parties and the Court.
20 1.6 Class Representatives. Class Representatives mean Carl L. Masztal, Joseph A.
21 Graupier, Juana Martinez, and Marisol Fernandez, and such further Class Representatives as
22 may be added to provide adequate class representation, in which event such additional Class
23 Representatives shall join in this Agreement.
24 1.7 Common Fund. The "Common Fund" means the total sum of $15,550,000 (less any
25 administrative costs advanced by the City as necessary to provide notice during the preliminary
26 approval period as described in paragraph 1.12, which shall be credited from the total Common
27 Fund amount), to be contributed by The City. The Common Fund shall be used exclusively by
28 the Administrator for valid class claims, administrative costs, and class counsel's attorneys' fees
29 and costs as determined by the Court.
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1.8 Final Approval. "Final Approval" means that all of the following has occurred:
(a) The Court has entered the Final Judgment (as defined in paragraph 1.9);
3 and
4 (b) The Final Judgment has become "Final."
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6
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10
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(c) "Final" means:
(ii) 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 rehedring, 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
12 Settlement Order has not been modified, amended or reversed in any way.
13 1.9 Final Judgment. "Final Judgment" means the final judgment entered by the Court
I4 giving final approval to this Agreement and providing for the orderly performance and
15 enforcement of the terms and conditions of this Agreement.
16 1.10 Order Granting Preliminary Approval. "Order Granting Preliminary Approval"
17 means the order entered by the Court which grants preliminary approval of this Agreement.
18 1.11 Ordinance. "Ordinance" means Ordinance No. 11584 as duly adopted by the City
19 Commission and as codified in Chapter 19.5 of the Code of the City of Miami.
20 1.12 Preliminary Approval. "Preliminary Approval" means that the Court has entered an
21 Order Granting Preliminary Approval of the terms and conditions of this Agreement. The Parties
22 will request that the Court include in its Order Granting Preliminary Approval at least the following:
23 (a) the time frame for provision of notice to the Class, (b) the form and substance of the Class
24 notice and request for refund form; (c) the date for the final Fairness Hearing; (d) the time period
25 for opting out of the Class; and (e) the time period for filing objections to the settlement. This
26 provision does not restrict a more expansive class notice.
27 1.13 Refund(s). "Refund(s)" means that portion of the total Common Fund to which each
28 Class member is entitled, as determined by a formula to be determined by the Administrator to be
29 fair and approved by the Court. The Parties contemplate that the amount of refund to be paid to
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1 Bach Class member will depend on the number of Class members filing valid claims. No Class
2 member will receive a Refund that is more than the amount of the Assessment the Class member
3 paid, and, in fact, the Parties believe it unlikely that anyone will receive a complete Refund of all
4 Assessments paid, Refunds will only be disbursed by the Administrator to those Class members
5 determined by the Administrator to be eligible for a Refund under the terms of this Agreement.
6 The percentage of Assessment paid which will be returned to each individual qualified Class
7 member cannot be determined by the Court, Administrator, or the Parties until such time as the
8 claims are processed by the Administrator in accordance with this Agreement.
9 The method by which the amount of each Class members' qualified Refund is calculated
10 shall be determined by the Administrator, and approved by the Court. The Administrator shall
11 determine a method of calculation which it deems to be reasonable and fair, and which minimizes
12 the amount of Administrative fees and costs necessary to process and determine the Refunds.
13 Refunds will be made to qualified class members upon sufficient proof of a valid claim as set forth
14 herein, within the time periods set forth , herein and as approved by the Court.
15 1.14 Resolutions. "Resolutions" means the City of Miami preliminary, initial and final
16 resolutions which enacted the Assessments, to include, but not be limited to, the following
17 ' Resolutions: 98-34; 98-325; 98-419; 98-773; 98-817; 98-885; 99-433; 99-689; 00-669; 00-803;
18 01-589; 01-818; 02-823; 02-1025; 03-748; 03-1014; 04-0452; 04-0597; 04-0748; 05-0431; 05-
19 0548; 06-0431; and 06-0543,
20 1.15 Plaintiffs. "Plaintiffs" mean the Class Representatives, Carl L. Masztal, Joseph A.
21 Graupier, Juana Martinez, and Marisol Fernandez, and such further Class Representatives as
22 may be added to provide adequate class representation, in which event such additional Class
23 Representatives shall join in this Agreement.
24 1.16 Singular/Plural. The plural of any defined term includes the singular, and the
25 singular of any defined term includes the plural, as the case may be.
26 1.17 Statute. "Statute" shall mean section 170.201, Florida Statutes and Chapter 166,
27 Florida Statute (cited as the Municipal Home Rule Powers Act),
28 1.18 Successors. "Successors" means (a) in the case of a deceased individual property
29 owner who would otherwise fall within the definition of the Class, the person, entity or other who,
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1 by order of a court of competent jurisdiction, statute, contract, or operation of law is deemed the
2 legal heir of the deceased property owner; (b) in the case of a legal entity including but not limited
3 to a corporation, professional association, partnership, or limited liability partnership, and which
4 such entity has been dissolved or no longer exists in the same form it did in the time period in
5 which an Assessment was paid, and otherwise would fall within the definition of the Class,
6 individuals or entities who/which, by order of a court of competent jurisdiction, statute, contract, or
7 by operation of law are deemed legal successors of the dissolved entity; and (c) guardians,
8 personal representatives, conservators, trustees, receivers, holders of a durable 'power of
9 attorney, and other legal representatives who/which, by order of a court of competent jurisdiction,
10 contract, statute, or operation of law are deemed legal representatives or successors of the Class
11 member who is unable to make a claim for a Refund themselves/itself.
12 1.19 Assessments. "Assessment" or "Assessments" refers to the Fire/ Rescue
13 Assessments imposed by the City of Miami pursuant to Chapter 19.5 of the City of Miami Code
14 for Fiscal Years 1997-1998, 1998-1999, and 1999-2000 and the Fire Assessments imposed by
15 the City of Miami pursuant to Chapter 19.5 of the City of Miami Code for Fiscal Years 2000-2001,
16 2001-2002, 2002-2003, 2003-2004, 2004-2005, 2005-2006 and 2006-2007.
17 1.20 Original Plaintiffs. "Original Plaintiffs" means Eva Nagymihaly, Gordon Willits,
18 Jean and Jocelyn Prosper, and Kenneth Merker.
19 1.21 Adorno & Yoss. "Adorno & Yoss" means the law firm of Adorno & Yoss, LLP, or
20 any of its predecessor or successor entities, or any of its former or current shareholders,
21 personnel, and attorneys, including but not limited to Henry ("Hank") Adorno, Esq., Mitchell
22 Bloomberg, Esq., and Robin Corwin Campbell, Esq.
23 1.22 TTUFF, Inc. "TTUFF, Inc." means the Florida corporation by the same name and
24 its current and former officers and directors, specifically including but not limited to Judy Clark
25 and Peter Clancy.
26 1.23 Tenants and Taxpayers United for Fairness, Inc. "Tenants and Taxpayers
27 United for Fairness, Inc." means the Florida corporation by the same name and its current and
28 former officers and directors, specifically including but not limited to Judy Clark and Peter Clancy,
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1 1.24 Qualified Class Member. "Qualified Class Member" means a Class member as
2 defined herein who is deemed by the Administrator to be qualified to receive a Refund upon
3 compliance with all provisions and requirements set forth in Section III.
4 1.25 Fairness Hearing. "Fairness Hearing" means the final hearing with the Court
5 wherein, or upon which, Final Judgment is entered.
6 II. ESSENTIAL TERMS OF THE SETTLEMENT
7 The following terms, as set forth in this section, are considered by the Parties to be the
8 essential terms of the settlement and to constitute the consideration of the Parties for this
9 settlement.
10 2.1 Purpose of Settlement. This Agreement is entered into by the Parties to settle and
11 compromise any and all disputes between them as described herein. This Agreement does not
12 constitute an admission by the City that it is or has engaged in any wrongdoing or wrongful
13 conduct or otherwise acted improperly or in violation of any law or regulation in any respect,
14 except for the rescue portion of the Fire/Rescue Assessments adopted for fiscal years 1997-1998
15 and 1998-1999. The Florida Supreme Court has ruled in City of North Lauderdale v. SMM
16 Properties that it is lawful for a municipality to enact assessments for fire services, as fire services
17 provide a special benefit to property. Beginning on September 14, 2000, the City enacted an
18 Assessment that it contends is for fire services only and is therefore lawful. The Plaintiffs contend
19 that the Assessment remained illegal in operation. There has never been any judicial ruling or
20 finding on these competing contentions. Although the Court, in this Litigation being settled, has
21 ruled the FirelRescue Assessment levied in fiscal years 1997-1998 and 1998-1999
22 unconstitutional to the extent that it was assessed for emergency medical services the Court has
23 made no ruling or finding that the Fire/Rescue or Fire Assessments were improper other than as
24 stated above. Nor has it determined the extent to which, if any, the Fire/Rescue Assessment
25 assessed impermissibly for emergency medical services. Thus, there has been no determination
26 by any Court that the Class is entitled to a Refund, or the amount thereof.
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2.2 Appeals. This Agreement shell have no force or effect on the claims the Parties
2 currently have or may have against the Original Plaintiffs and Adorno & Yoss, currently pending
3 before the Third District Court of Appeal, which have been consolidated as Carl Masztal, etc., et
4 al. Appellants/Cross-Appellees v. The City of Miami, Florida, Appellees/Cross-Appellants, Case
5 No. 3D06-1259, Consolidated Case Nos..3D06-920; 3D06-924; 3006-947; 3D06-1046; 3D06-
6 1055; and 31306-1255. This Agreement shall also have no force or impact upon the City's efforts
7 to execute on funds determined by the Court to be due and owed per the March 17, 2006 Order
8 and the Final Judgment and Amended Final Judgment arising there from, or otherwise.
9 2.3 Other Litigation. This settlement and this Agreement are intended solely to benefit
10 the City and the Class, both as defined herein. This Agreement shall have no effect on claims
11 pled, to be pled, or that might be pled by or on behalf of the Plaintiffs or the Class, or any
12 component, portion, or member of the Class, against anyone not specifically included herein.
13 This Agreement does not affect, release, extinguish, waive, limit or compromise any claim that
14 the Plaintiffs, the Class or any portion of the Class, or any member of the Class, or the City, have
15 or may have against the Original Plaintiffs, Adorno & Yoss, or Peter Clancy, Judy Clark, TTUFF,
16 inc., or any other person or entity not expressly stated to be the beneficiary of this settlement and
17 Agreement. The Parties expressly contemplate that the Class or a portion thereof will pursue
18 such additional claims. The viability of any such future claims will not be a bar to this Agreement,
19 however.
20 2.4 Creation of Common Fund. As consideration for the Agreement, the City will fund,
21 pursuant to paragraph 1.7 above, the Common Fund (as previously described) which will total
22 $15,550,000 to be disbursed in accordance with the Agreement. At all times prior to transfer to
23 the Administrator for disbursement by the Administrator, the City shall hold the $15,550,000 and
24 treat same as allocated, designated funds. The City will transfer the funds to the Administrator
25 immediately after the Final Approval for disbursement in accordance with the Agreement. A
26 portion of the Common Fund may be advanced by the City for the printing, postage, publication,
27 or other costs during the Preliminary Approval Period, as necessary to assist the Administrator in
28 its duties and responsibilities. The Administrator shall deposit all portions of the Common Fund in
29 an approved and secure interest bearing account which shall be held until such time as the
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1 Common Fund will be disbursed to the lass per the terms of this Agreement. Any interest
2 earned on any portion of the Common Fund shall become part of the Common Fund. The
3 Administrator shall file a verified accounting as to the funds at intervals of such frequency as the
4 Court directs.
5 2.5 Application for Refunds. Each Class member shall have the right to request a
6 Refund by the procedures substantially set forth in section III of this Agreement, or as
7 determined by the Court. Only qualified Class members or their qualified legal successors shall
8 have the right to seek a Refund. The right to a Refund shall not be assignable.
9 2.6 Injunctive Relief. Each of the 'Parties shall have the right to restrain, by injunction,
10 restraining order, or other relief, any breach or threatened breach of the terms and agreements
It contained herein, and to compel specific performance of those terms and agreements.
12 2.7 Attorneys' Fees and Expenses. The City and the Plaintiffs agree that Class
13 Counsel will be entitled to recover reasonable attorneys' fees and costs and expenses (including
14 expert fees paid or incurred to substantiate an award of attorneys' fees or otherwise) for the
15 Litigation from the Common Fund, and that the amount of such attorneys' fees is left to be
16 determined by the Court in accordance with applicable law. There is no agreement between the
17 City and the Plaintiffs or Class Counsel as to the amount of those fees.
18 2.8 Costs of Administration and Order of Disbursal. The costs and expenses of the
19 Administrator in administering the Common Fund, including, but not limited to, providing the
20 Class Notice, providing the request for refund forms to the Class, and processing and verifying
21 all returned request for refund forms and processing payments, will be deducted from the
22 Common Fund. The City, as determined by the Administrator, may be required to advance
23 certain costs from the Common Fund for printing, postage, and publication during the preliminary
24 approval stage. Any costs so advanced by the City shall be credited against the Common Fund.
25 After Final Approval, the remaining Administrative costs and expenses shall initially be paid from
26 the interest earned on the Common Fund. If the interest earned on the Common Fund is
27 insufficient to pay all of the Administrative costs and expenses, the remaining costs and
28 expenses shall be paid from the Common Fund. If the interest earned on the Common Fund
29 exceeds the Administrative costs and expenses to be paid, the remainder of the interest earned
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1 shall be added to the total amount from the Common Fund to be distributed for Refunds to
2 qualified Class members in the third stage of disbursements.
3 The costs and expenses estimated by the Administrator shall be filed by the Parties
4 along with the Motion for Preliminary Approval. The Administrator shall notify the Court and copy
5 all counsel of record as soon as possible prior to exceeding $550,000 in costs and expenses.
6 The Administrator will disburse the Common Fund in four disbursement stages, and
7 pursuant to the following priority, as is typical in all class actions. The first disbursement will be
8 the amount of attorney's fees and costs for Class Counsel, as approved by the Court. The
9 second disbursement will be administrative costs and expenses, as approved by the Court. The
10 third disbursement will be qualified Refunds to the Class as determined and processed by the
11 Administrator. The fourth disbursement will be the reversion of any remaining unclaimed portion,
12 if any, of the Common Fund to the City for application to the benefit of the Fire Department.
13 2.9 Payment of Approved Attorneys' Fees and Expenses. Within fifteen (15) days
14 after Final Approval, the Administrator shall pay or reimburse the amount of such attorneys' fees
15 and costs determined to be due pursuant to paragraph 2.7 to Class Counsel.
16 2.10 Releases and Bar of Claims. As part of the consideration for the Agreement, upon
17 • Final Approval, each member of the Class shall be deemed to have provided a full and complete
18 release of any and all claims as described in paragraph 5.1 below. This release shall constitute
19 an integral and essential part of this Agreement, and cannot be severed from this Agreement.
20 Any Class member that does not wish to give such release must opt out as provided in paragraph
21 3.4. Nothing therein or herein constitutes or is a release in any way of the Original Plaintiffs,
22 Adorno & Yoss, or Judy Clark, Peter Clancy, Tenants and Taxpayers United for Fairness, Inc., or
23 TTUFF, Inc., from any current, pending or future claims by any of the Parties.
24 2.11 Reversion of Fund. If, after the Administrator has satisfied all of its priorities in
25 regard to the Common Fund described in paragraphs 2.7, 2.8 and 2.9, and all Refunds to eligible
26 Class Members have been paid, there remains any unclaimed monies in the Common Fund,
27 such monies shall revert to the City for application to the benefit of the Fire Department.
28 2.12 Disgorged Settlement. If the Parties are successful on their Motions to Set Aside
29 Settlement on appeal, arising from the March 17, 2006 Order, and the Final Judgment and
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Case Nos. 98-11208 CA 31, 05-2117 CA
1 Amended Final Judgment resulting therefrdm, all monies which have been disgorged to date by
2 the Original Plaintiffs, Tenants and Taxpayers United for Fairness, Inc., TTUFF, Inc. or the law
3 firm of Adorno & Yoss, pursuant to the Court's Order Granting the City's Motion to Set Aside
4 Settlement and the New Plaintiffs' Motion to Vacate the Settlement, entered on March 17, 2006,
5 or otherwise and which were deposited in a special account with Northern Trust Bank, shall
6 revert back to the City's General Fund for application to the benefit of the Fire Department. The
7 remaining monies that have not been disgorged as of the date that this Agreement goes into
8 effect, and which thereafter are obtained shall revert back to the City's General Fund for
9 application to the benefit of the Fire Department. However, if the Parties are unsuccessful on
10 appeal or the City cannot collect any additional money due and owing, that will not be a bar to
11 this Agreement.
12 2.13 Court Retains Jurisdiction. After the Court has entered Final Judgment, it shall
13 retain jurisdiction over the Litigation for the following purposes: (a) effectuating and enforcing the
14 terms of this Agreement; (b) effectuating and enforcing the terms of the Court's Final Judgment;
15 and (c) considering and ruling upon objections to denials or reductions in Refunds.
16 The parties agree to seek transfer of any future claims which may be filed and arise from
17 the substance of this Litigation, the settlement, or the claims administration process to the same
18 division before which this Litigation is pending, unless the interest of justice and judicial
19 economy dictates otherwise.
20 2.14 Third Party Fund Administrator. The Refunds and Refund process, Court-
21 approved attorneys' fees and costs, and Court -approved administrative costs and expenses, as
22 set forth in this Agreement, shall be processed and disbursed by the neutral Third Party
23 Administrator, Epiq Systems, as defined in paragraph 1.3.
24 III. APPROVAL AND CLASS NOTICE
25 The Parties recommend to the Court that the Approval and Class Notice process be
26 effectuated in substantially the form set forth in this section. The Parties may individually or
27 jointly request that the Court reasonably alter any of the provisions recommended in this section.
28 To the extent that the Court deems it appropriate to alter any of the provisions recommended in
29 this section, the Parties agree that such action by the Court shall not operate to nullify this
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1 Agreement, provided that such change does not impair the effectuation of the Essential Terms of
2 the Settlement, set forth above in section II.
3 3.1 Approval. This Agreement has been approved by the Plaintiffs and Class Counsel,
4 and will be presented by the City Attorney to the City Commission for approval on July 26, 2007.
5 Class Counsel and the Administrator will be present at that meeting in order to respond to any
6 queries.
7 3.2 Preliminary Approval by the Court. Within fifteen (15) days after the Parties fully
8 execute the Agreement, the Parties will jointly move the Court for Preliminary Approval of the
9 Agreement and includes, at a minimum: (a) the timing of providing notice to the Class via
10 individual notice and publication, (b) the form and substance of the Class notice and request for
11 refund form; (c) the date for the final Fairness Hearing; (d) the time period for opting out of the
12 Class; and (e) the time period for filing objections to the settlement.
13 Also within fifteen (15) days after the Parties fully execute the Agreement, the following
14 shall be done; (a) Class Counsel shall move to amend the current order certifying the Class; (b)
15 Class counsel shall file their petition for attorneys' fees and costs; and (c) the Parties shall file the
16 estimated costs and expenses of the Administrator for the Court's consideration.
17 3.3 Class Notice. The Administrator and/or the Parties have researched City, County,
18 and State records in an effort to identify members of the Class. The Administrator will send the
19 approved class notice to Class members so identified via U.S. Mail, postage prepaid. The
20 Administrator also will publish the Class Notice as provided below.
21 The Parties agree to cooperate in good faith with regard to wording and publication of the
22 Class Notice to ensure that fair and reasonable notice is given. The form and substance of the
23 Class Notice shall be agreed upon by the Parties and approved by the Court. The time frames
24 and other provisions set forth herein are recommendations of the Parties to the Court for its
25 consideration.
26 (a) The Class Notice period shall commence the first business day following
27 the Court's entry of Preliminary Approval and shall run for thirty (30) consecutive days.
28 (b) Any Class member wishing to be excluded from the Class must submit a
29 written request therefore to the address provided in the Notice, postmarked no later than
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Case Nos. 98-11208 CA 31, 05-2117 CA
1 fifteen (15) days before the date of the Fairness Hearing;
2 (c) Any such requests for exclusion can only be signed by the Class
3 member. Family members, counsel, friends, or other (other than legal successors)
4 cannot co-sign, or sign on behalf of any Class member, and any request not signed by
5 the Class member will be rejected as void;
6 (d) Any Class member can object to the Agreement by filing and serving a
7 written objection, personally signed by the Class member, no later than fifteen (15) days
8 before the date of the Fairness Hearing;
9 (e) Any Class member wishing to appear at the Fairness Hearing must
10 object as stated in paragraph 3.3(c);
11 (f) Any judgment entered with regard to the Claims, whether favorable or
12 unfavorable to the Class, will include and be binding on all Class members, even if such
13 Class member has objected to the Agreement and even if such Class member has any
14 other claim, lawsuit or proceeding pending against City and relating in any way hereto,
15 unless such Class member is excluded herefrom as set forth in paragraph 3.4 below;
16 (g) Instructions on how a purported Class member can obtain a request for
17 rebate form; and
18 (h) Other such matters as the Court requires for a fair and reasonable
19 notice to the Class.
20 Fifteen (15) days into the Class Notice period, the Administrator will commence
21 publication of the Class Notice, at a minimum, five (5) times over the course of fifteen (15) days
22 locally in The Miami Herald, and El Nuevo Herald, and nationally in USA Today and/or in such
23 other publications and frequency of publication as the Parties, the Administrator, or the Court
24 deem necessary to provide reasonable notice.
25 The Parties agree to work together in good faith to resolve any changes to the precise
26 language of the notice, as well as the placement and size, and frequency of publication. Further,
27 the Class notice and the Agreement shall be published at an Internet site to be designated by
28 the Administrator with the approval of the Parties, which will be, or will be linked to, the web
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Case Nos. 98-11208 CA 31, 05-2117 CA
1 page created and maintained for the purpose of advising the Class about this settlement and its
2 terms, in a widely -used format for convenience of the Class members.
3 3.4 Requests for Exclusion (Opt Out). Would-be Class members have the right not to
4 participate in this settlement. The notice referred to in paragraph 3.3 above shall set forth the
5 address to which any requests for exclusion, or to opt out, shall be mailed by Class members
6 who wish to opt out of the Class. Any Class member may be excluded from the Class by filing a
7 written request for exclusion with the Clerk of Court, which address will be provided in the notice
8 and available from the Administrator and public record. The filing date on the request for
9 exclusion must be no later than fifteen (15) days prior to the date of the Fairness Hearing. A
10 copy of the written request for exclusion must also be mailed to the Administrator. The request
11 for exclusion must be personally signed by the Class member. The Class member does not
12 need to state any reason for the requested exclusion. A Class member who elects to be
13 excluded from the Class pursuant to the Agreement will be excluded entirely from the Class and
14 will therefore not participate in the settlement process, will have no standing to object to the
15 settlement or this Agreement, and will not be entitled to receive any Refunds pursuant to this
16 settlement and will not be subject to the Agreement, Exclusion from the Class, or opting out, is a
17 distinct and separate process from objecting to the settlement, as described in paragraph 3.5.
18 Any Class member that does not apt out is subject to all terms and conditions of this
19 Agreement and agrees that satisfaction of his, her, or its Claims against City, as well as entry of
20 the Final Judgment, shall be binding upon all Class members other than any Class member who
21 has been excluded from the Agreement pursuant to the terms of the Agreement.
22 3.5 Objections to Settlement. Any Class member who wishes to object to this
23 Agreement or any aspect of it, including settlement amount or terms, method of distribution, fees
24 (administrative, attorney, or other), costs, or other substantive or procedural matter, must file a
25 written objection. The written objection must be filed by the Class Member with the Clerk of the
26 Circuit Court and served on the Parties' counsel. The objection shall be marked by the Clerk of
27 the Circuit Court as filed no later than fifteen (15) days before the Fairness Hearing. The written
28 objection shall contain a statement in detail of the objection, including the specific factual and
29 legal reason(s) for it. The statement should include specific reference to legal authority and
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1 specify any and ail factual bases in detail. The Class member, may file such objection him, her or
2 itself, or through counsel. If the objection is filed through counsel, the attorney must:
3 (a) File a notice of appearance with the Clerk of Court no later than fifteen
4 (15) days prior to the Fairness Hearing; and
5 (b) Serve a copy of such notice of appearance on Parties' Counsel.
6 Any Class member that files and serves a written objection, as described herein, may
7 appear at the Fairness Hearing either in person or through counsel (hired at the Class member's
8 expense) to object. Class members or their attorneys intending to appear at the Fairness
9 Hearing must serve on Parties' counsel, and file with the Court, postmarked no later than fifteen
10 (15) days before the Fairness Hearing or as the Court may otherwise direct, a notice of intention
11 to appear. Any Class member that fails to comply with the provisions of the preceding
12. paragraphs shall waive and forfeit any and all rights the Class member may have to appear
13 and/or to object, and shall be bound by all the terms of the Agreement and by all proceedings,
14 orders and judgments relating to the Agreement.
15 Objection to this Agreement or this settlement or any of their terms or provisions under
16 this paragraph are distinct from objections to the denial or reduction of Refunds, as described in
17 ' paragraph 4.7,
18 3.6 Entry of Final Judgment. The date of the Fairness Hearing shall be set by the
19 Court in its order granting Preliminary Approval, but shall, at a minimum, be set after Class
20 Notice has been mailed and published, and the period for opting out of the Class and filing
21 objections to the settlement has passed. At the Fairness Hearing, the Plaintiffs and City will
22 request that the Court, among other things: (a) finally approve the settlement and the Agreement
23 as fair, reasonable, adequate, and binding on ail members of the Class; (b) finally determine the
24 amount and approve payment of attorneys' fees and expenses to Class Counsel as provided for
25 in paragraph 2.7 of the Agreement; (c) finally order that the Refunds be distributed to all Class
26 members as provided for herein; and (d) enter and render the Final Judgment in accordance with
27 the Agreement. The entry of Final Judgment shall not preclude or dispose of any of the claims
28 or potential claims set forth in paragraph 2.3.
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3.7 Effect of Failure to Enter Final Judgment. In the event the Court denies entry of
2 the Final Judgment in accordance with the Agreement, as defined herein, the Litigation shall
3 resume, this Agreement shall be of no force or effect, and the Parties' rights and defenses shall
4 be restored without prejudice as if the Agreement had never been entered into, unless either of
5 the Parties seek reconsideration or appellate review of the decision denying entry of the Final
6 Judgment.
7 If either of the Parties elect to seek appellate review of an order declining to enter the
8 Final Judgment as provided for in the Agreement, and such appellate review is denied or is
9 unsuccessful after exhaustion of all available appellate remedies, the Litigation shall resume, the
10 Agreement shall be of no force or effect and the Parties' rights and defenses shall be restored
11 without prejudice as if the Agreement had never been entered into, unless otherwise agreed to in
12 writing by the Parties.
13 IV. DISTRIBUTIONS OF REFUNDS
14 The Parties agree to recommend to the Court that the distribution of Refunds shall be
15 done by the Administrator in substantially the following manner:
16 4.1 Distribution of Refunds. The Administrator shall be responsible for distributing the
17 Refunds as described below. The Administrator will have the authority to make all decisions
18 necessary for the orderly implementation and administration of the Agreement and settlement,
19 and the distribution of the Refunds, provided that the administration and the Refunds are
20 distributed in a manner consistent with the terms of the Agreement and Florida law. Any
21 disagreement between the Administrator, Class Counsel, or Counsel for the City with respect to
22 this section shall be resolved initially by the Parties. However, if they cannot agree, the Parties
23 shall seek a judicial determination from the Court. All objections to denials or reductions in
24 Refunds, as described in paragraph 4.7, shall be considered and ruled upon in the first instance
25 by the Administrator, and then there shall be an opportunity for further review if allowed or
26 required under the law.
27 4.2 Distribution of Request for Refund Forms. The only entity responsible for
28 distributing request for refund forms is the Administrator. Within thirty (30) days after the
29 .Agreement receives Preliminary Approval, the Administrator shall distribute via first class mail,
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Case Nos. 98-11208 CA 31, 05-2117 CA
1 ,'at such best address as is reasonably practicable, the Notice of Class Action pursuant to
2 paragraphs 3.3 of the Agreement. The Notice of Class Action shall provide instructions for
3 obtaining request for refund forms from the Administrator.
4 4.3 Deadlines and Other Matters Relating to Request for Refund Forms. The
5 request for refund forms referred to in paragraph 4.2 above shall set forth the address to which
6 they shall be returned. That address shall be a post office box, obtained by the Administrator.
7 The Parties recommend that the Court allow Class members at least thirty (30) days after the
8 date of the Fairness Hearing to mail the completed request for refund forms to the
9 Administrator,
10 Untimely -filed request for refund forms shall be rejected by the Administrator. Any
I1 request for refund forms timely submitted but materially incomplete shall be rejected and
12 returned by regular U.S. mail, postage prepaid, to the last known address of the Class member.
13 To be considered for Refund, the Class member must revise and resubmit the request for
14 refund form within fifteen (15) days after the postmark date an the return envelope. Any untimely
15 revision or timely but materially incomplete revision shall be rejected and disallowed in its
16 entirety.
17 ' Any objections made pursuant to paragraph 4.7 must be timely made and in no event
18 more than fifteen (15) days of the postmark date of the denial notice or Refund check.
19 4.4 Verification of Request for Refund Forms. To be eligible to receive a Refund
20 pursuant to this Agreement, a Class member must complete a request for refund form. The
21 Class member must complete this form under penalty of perjury and provide reasonable proof of
22 entitlement to a Refund. Reasonable proof will include, but not necessarily be limited to, proof of
23 ownership of the property, proof of identity; and proof that the Class member paid the
24 Assessment(s), with such proof consisting of such documentation as approved by the Court or, if
25 not specified by the Court, the Administrator. In addition, the Administrator may require
26 additional proof on a case -by -case basis, if necessary, to ensure that the claimant is a bona fide
27 Class member and is legally entitled to a Refund for the claimed property. The need for
28 additional forms of proof, and the types of proof beyond those generally required, shall be
29 determined in the sole discretion of the Administrator and will be specified in the request for
83184 Page 20 of 30
Case Nos. 98-11208 CA 31, 05-2117 CA
1 refund form. It will be presumed in the absence of any showing otherwise that the person seized
2 of the property on the date that the Assessment each fiscal year at issue first became due was
3 the person that paid the Assessment. Final determination of such ownership will be in the
4 discretion of the Administrator.
5 4.5 Distribution of Refund Checks. The Administrator shall distribute the Refund
6 Checks within ninety (90) days from the deadline in which to file the request for refund form, or,
7 upon Order of the Court, within such additional time as is reasonably required by the
8 Administrator. Refund Checks shall be rriailed via regular U.S. mail, postage prepaid, to the
9 address designated on the form. The Administrator may use a single envelope to distribute
10 Refund Checks to different recipients that designate the same address, Refund Checks shall be
11 valid for a period of one -hundred and eighty (180) days from the date of the check. Any checks
12 which remain un-cashed after that period of time shall be considered void, and those amounts
13 shall revert to the City for application to the`benefit of the Fire Department.
14 4.6 Priority of Disbursement of Common Fund. The Administrator shall disburse the
15 Common Fund in the following order of disbursements:
16 (a) First, all attorneys' fees and costs of Class Counsel, including attorneys'
17 fees and expenses or costs associated with the Litigation and settlement, as approved by the
18 Court;
19 (b) Second, the fees, costs and expenses of the Administrator as approved
20 by the Court;
21 (c) Third, to any Class member who has timely filed a complete request for
22 refund form in accordance with the Agreement, the amount of the Refund (not to exceed the
23 entire amount of the assessment(s) so paid by the Class member); and
24 (d) Fourth, the balance (if any) to the City for application to the benefit of the
25 Fire Department.
26 4.7 Objections to Denial or Reduction of Refund. The only remaining allowable
27 objection by a Class member after the Final Hearing is an objection to the denial of a Refund, or
28 purported improperly reduced Refund due to alleged failure of the Administrator to properly
29 follow the formula for determining Refunds set forth in paragraph 4.3. Any such objection must
83184
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Case Nos. 98-11208 CA 31, 05-2117 CA
i be made in writing within fifteen (15) days of the postmark date on the envelope bearing the
2 denial or Refund check. Objections to Refund denials or reductions shall be made in writing and
3 filed with the Clerk of Courts and served upon counsel for the Parties. All objections must state
4 with factual specificity the grounds for objection. All objections shall be ruled upon by the Court,
5 unless withdrawn.
6 In the event that any objection(s) shall be filed for a purported reduction in Refund
7 check(s) the undisputed portion of the Common Fund may be distributed by the Administrator.
8 However, the Administrator shall retain a sufficient portion of the Common Fund to assure
9 payment of the disputed portion(s), including any other additional amounts that may be payable
10 under paragraph (a) above, upon final resolution by the Court (including any appeals) of the
11 petition or petitions. The Administrator shall retain a sufficient portion of the Common Fund to
12 assure payment following resolution of any .objection(s) filed for a purported reduction in Refund
13 check(s), including any other additional amounts that may be payable under paragraph (a)
14 above, upon final resolution by the Court (including any appeals) of the objection or objections.
15 In the event that no objection(s) are filed or the amount of the objection(s) once resolved does
16 not exhaust the Common Fund, the portion of the Common Fund remaining may be distributed
17 by the Administrator in a second wave of payments to the qualified Class members. In the
18 event that the Court determines that the administrative costs associated with the distribution of
19 any remaining funds is excessive compared to the amount to be distributed, said funds shall
20 revert to the City for application to the benefit of the Fire Department.
21 4.8 Report on Refund Checks. Within twenty (20) days after the deadline for
22 distribution of the Refund Checks, the Administrator shall certify to the Court in a declaration,
23 based on the personal knowledge of the declarant, the total number of Refund Checks
24 distributed and the total aggregate amount of Refunds represented by such Refund Checks.
25 The Administrator shall serve a copy of the declaration filed with the Court on the Parties'
26 counsel.
27 4.9 Responsibility for Inquiries of Class Members. The Administrator shall respond to
28 questions from the Class members concerning the criteria for distribution of Refunds. A toil -free
29 number shall be included in the Class Notice and request for rebate form for such purposes.
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Case Nos. 98-11208 CA 31, 05-2117 CA
Any inquiries to the City or its officials, officers, employees, or agents, may be referred to the
2 Administrator.
3 V. RELEASES
4 5.1 Release and Covenant Not to Sue. Upon Final Approval, and by not having elected
5 to be excluded from the Class pursuant to the Agreement, each Class member agrees to forever
6 release, remise, acquit, satisfy and discharge The City, including all of its current and former
7 directors, officials, officers, employees, agents, representatives, attorneys, and managers from
8 any and all, and all manner of action and actions, cause and causes of action, claims, contracts,
9 controversies, covenants, damages, legal and administrative relief, whether based on federal,
I0 state or local law, statute or ordinance, regulation, contract, common law, or any other source,
11 including any claims relating to federal or state law, that have been, could have been, may be or
12 could be alleged or asserted now or in the future by Plaintiffs, or any Class member against the
13 City as to the Claims, or in any other court or before any administrative or governmental body or
14 agency (including any federal or state regulatory,commission), tribunal, arbitration panel or self-
15 regulatory organization on the basis of, connected with, arising out of, or related to, in whole or in
16 part, all causes of action, including but not limited to actions arising in negligence, non -intentional
17 tort, intentional tort, civil rights, contract, statute, common law, constitutional law, or administrative
18 law, relating to the Assessments including, and without limitation, any and all claims in connection
19 with the Ordinance, the Statutes, the Amended Statutes, the Resolutions, the Claims, collection
20 of the Assessments by the City or apportionment of the Assessments, and any alleged actions,
21 inactions, conduct or occurrences by, or on behalf of, the City or its former or current agents,
22 employees, officials, officers, and representatives, during the course of the Litigation, This
23 release and consent not to sue is binding on any Class member that does not opt out.
24 By not electing to be excluded from the Class, each Class member expressly agrees
25 that he, she, or it acting individually or together, shall not seek to institute, maintain, prosecute,
26 sue or assert in any action or proceeding against the City, or its former or current agents,
27 employees, officials, officers, and representatives, any action or actions, cause and causes of
28 action, or claim on the basis of, connected with, arising out of, or related to, in whole or in part
29 any of the Claims, including without limitation, any or all of the acts, omissions, facts, matters,
83 184 Page 23 of 30
Case Nos. 98-11208 CA 31, 05-2117 CA
1 transactions or occurrences that were directly or indirectly alleged, asserted, described, set forth
2 or referred in, or related to, the Litigation, or the claims, including without limitation, the facts,
3 events and circumstances that are the basis of the allegations set forth in the Litigation. Nothing
4 herein shall preclude any action to enforce the terms of the Agreement.
5 In connection with this release and covenant not to sue, the Class members
6 acknowledge that they are aware that they may hereafter discover facts, claims and causes of
7 action presently unknown or unsuspected, or facts in addition to or different from those which
8 they now know or believe to be true with respect to the matters released herein. Nevertheless, it
9 is the purpose of the Agreement and the intention of Plaintiffs and the Class members to settle
10 and release all such matters, and all actions, causes, causes of action, claims, and Unknown
11 Claims (as defined below) relating only to the subject matter of the City or Claims against the
12 City, or its former or current agents, employees, officials, officers, and representatives, which
13 exist, hereafter may exist, or might have existed (whether or not previously or currently asserted
14 in any action).
15 "Unknown Claims" means and includes those claims that any Class member does not,
16 for whatever reason, know or suspect to exist in his, her, or its favor at the time of the release of
17 the City and that, if known by him or her, may have materially affected his or her decision to
18 settle or not to object to this Agreement. Nothing in this provision or in the releases shall operate
19 or be construed to waive, limit, extinguish, release, or in any manner compromise the claims of
20 the Plaintiffs, the Class, Class Counsel, or the City against the Original Plaintiffs, Adorno & Yoss,
21 TTUFF, Inc., Judy Clark, Peter Clancy, or anyone not specifically enumerated herein as a
22 beneficiary of this Agreement.
23 The release as described herein is a condition of this Agreement, and an integral
24 component of the consideration to the City, and integral component of the Agreement.
25 VI. CONFIRMATORY DISCOVERY
26 Confirmatory discovery may be conducted in substantially the following format:
27 6.1 Confirmatory Discovery. The City will make available to the Administrator and Class
28 Counsel information in its possession that is reasonably necessary for the Administrator to
29 administer the Common Fund in accordance with this Agreement, and applicable law. By this
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Case Nos. 98-11208 CA 31, 05-2117 CA
1 + greement, the Parties grant the Administrator the authority on their behalf to obtain information
2 and documentation directly from the City, Miami -Dade County or State of Florida. The City agrees
3 to assist the Administrator as needed and as requested by the Administrator, to obtain information
4 and documentation from the County or State of Florida.
5 VII. MISCELLANEOUS PROVISIONS
6 7.1 Use.of Agreement. This Agreement is entered into for purposes of settlement of all
7 Claims. No settlement communications between the Parties which occurred before the
8 Agreement is executed by the Parties, or which occur afterward, shall be used in this or any
9 other proceeding for any purpose whatsoever, unless the Parties agree in writing to the contrary.
10 7.2 Agreement No Admission. This Agreement reflects, among other things, the
11 compromise and settlement of all claims arising out of the Litigation or the Claims. The Parties
12 agree that neither the Agreement, nor any document prepared in connection with the Agreement,
13 nor any action taken to carry out the Agreement is, may be construed as, or may be used as, an
14 admission or concession by or against the City or its former or current agents, employees,
15 officials, officers, or representatives, or any other person or entity concerning any alleged fault,
16 wrongdoing, or liability whatsoever, nor shall anything related to this settlement or Agreement be
17 so construed or used to limit any claims of the Parties except as specifically addressed herein.
18 7.3 Cooperation between the Parties. The Parties shall cooperate fully with each
19 other, and shall use their best efforts to obtain the Court's Preliminary Approval and Final
20 Approval of the Agreement and all of its terms.
2] 7.4 Written Notice to Parties. Where any Party's exercise of any right or discharge of
22 any responsibility under the Agreement requires written notice, the Party shall serve such written
23 notice on all other Parties as follows:
24 To City: The City of Miami
25 c/o Fire Assessment Class Action
26 3500 Pan American Dr.
27 Miami, FL 33233
28
29 To City's Counsel: Jorge L. Fernandez, City Attorney
30 Julie O. Bru, Deputy City Attorney
31 Office of the City Attorney
a2 444 SW Second Avenue
33 Suite 945
34 Miami, FL 33131-1910
35
83184 Page 25 of 30
1
2
3
4
5
6
7
8
9
10
11
12
13
14
To Class Counsel:
Case Nos. 98-11208 CA 31, 05-2117 CA
Thomas E. Scott, Esq.
Scott A. Cole, Esq.
Krista A. Fowler, Esq.
Cole, Scott & Kissane, P.A.
1390 Brickell Ave.
Third Floor
Miami, FL 33131
Michael Garcia -Petit, Esq.
Patrick A. Scott, Esquire
Richard L. Williams, Esquire
1451 N.W. North River Drive
Miami, FL 33125
I5 7.5 Governing Law. This Agreement is intended to, and shall be governed exclusively by,
16 the laws of the State of. Florida.
17 7.6 Entire Agreement. No representations, warranties, or inducements have been made to
18 any of the Parties to the Agreement, other than those representations, warranties, and covenants
19 set forth herein. There are no side or secret deals. This Agreement constitutes the entire
20 agreement between the Parties with regard to the subject matter contained herein, and all prior
21 and contemporaneous negotiations, understandings, and agreements between the Parties shalt be
22 deemed merged into the Agreement. No waiver, modification, or amendment of the terms of the
23 Agreement, made before or after the Court's approval of the Agreement, shall be valid or binding
24 unless in writing, signed by all Parties, and then only to the extent set forth in such written waiver,
25 modification, or amendment.
26 7.7 Construction of Agreement. The determination of the terms and conditions of the
27 Agreement has been by mutual agreement of the Parties. Each Party participated jointly in the
28 drafting of the Agreement and, therefore, the terms of the Agreement are not intended to be
29 construed against any Party by virtue of draftsmanship.
30 7.8 Binding Effect. The Agreement shall be binding upon, and inure to the benefit of,
31 the Parties as defined herein. The individuals signing the Agreement on behalf of the City hereby
32 represent and warrant that they have the power and authority to enter into the Agreement on
33 behalf of the City, on whose behalf they have executed the Agreement, as well as the power and
34 authority to bind the City to the Agreement. Class Counsel and Plaintiffs executing the
35 Agreement represent and warrant that they have the authority to enter into the Agreement on
36 behalf of the Class, subject to Court approval.
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Case Nos. 98-11208 CA 31, 05-2117 CA
7.9 Waiver. Any failure by any Party to insist upon the strict performance by any other
2 Party of any of the provisions of the Agreement shall not be deemed a waiver of any of the
3 provisions of the Agreement, and such Party, notwithstanding such failure, shall have the right
4 thereafter to insist upon the specific performance of any and all of the provisions of the Agreement.
5 7.10 When Agreement Becomes Effective; Counterparts. The Agreement shall exist
6 and become effective only upon its execution by the City, Plaintiffs, and Class Counsel. The
7 Parties may execute the Agreement in counterpart, and execution in one or more counterparts
8 shall have the same force and effect as if all Parties had signed the same instrument.
9 7.11 No Third Party Beneficiaries: The Agreement shall not be construed to create rights
10 in, or to grant remedies to, or delegate any duty, obligation or undertaking established herein to
11 any third party as a beneficiary to the Agreement, except as expressly provided herein. In no
12 event shall the Original Plaintiffs and Adorno & Yoss, TTUFF, Inc., Judy Clark, or Peter Clancy be
13 deemed a third party beneficiary of this Agreement.
14 7.12 Further Acts. Each Party, upon the request of the other Party hereto, agrees to
15 perform such further acts and to execute and deliver such other documents as are reasonably
16 necessary to carry out the provisions of the Agreement.
17 7.13 Continuing Jurisdiction. The Court shall retain jurisdiction over the interpretation
18 and implementation of the Agreement, as well as any and all matters arising out of, or related to,
19 the interpretation or implementation of the settlement or Agreement.
20 7.14 Facsimile Signatures. Any Party may execute the Agreement by signing their name
21 on the designated signature block below, and transmitting that signature page via facsimile to the
22 City's Counsel. Any signature made and transmitted by facsimile for the purpose of executing the
23 Agreement shall be deemed an original signature for purposes of the Agreement, and shall be
24 binding upon the Party transmitting their signature by facsimile.
25 7.15 Conflicts. In the event of conflict between the Agreement and any other document
26 prepared pursuant to the settlement, the terms of the Agreement shall control. Nothing in this
27 paragraph restricts the authority of the Court.
28 7.16 Language. All applicable notices, forms and the web site referred herein shall be in
29 English, Spanish, Creole and any other language deemed appropriate by the Court.
83189 Page 27 of 30
Case Nos. 98-11208 CA 31, 05-2117 CA
1
2 [SIGNATURES ON THE FOLLOWING PAGE]
83184 Page 28 of 30
Case Nos. 98-11208 CA 31, 05-2117 CA
1 PLAINTIFFS AND CLASS REPRESENTATIVES:
2
3
4 BY: DATE:
5 CARL MASZTAL, individually a
6 and on behalf of the Class
7
8
9 BY: DATE:
10 JOSEPH A. GRAUPIER, individually
11 and on behalf of the Class
12
13
14 BY: DATE:
15 JUANA MARTINEZ, individually
16 and on behalf of the Class
17
18 BY: i DATE:
19 MARISOL FERNANDEZ, individually
20 and on behalf of the Class
21
22
23 COUNSEL FOR THE CLASS:
24
25
26 BY: DATE:
27 Michael Garcia -Petit, Esquire
28
29
30 BY: DATE:
31 Patrick A. Scott, Esquire
32
33
34 BY: DATE:
35 Richard L. Williams, Esquire
36
83184 Page 29 of 30
Case Nos. 98-11208 CA 31, 05-2117 CA
CITY OF MIAMI, a municipal Corporation of the State of Florida:
By: DATE:
Priscilla A. Thompson
City Clerk
By: DATE:
Pedro G. Hernandez
City Manager
APPROVED AS TO FORM AND CORRECTNESS:
By: DATE:
Jorge Fernandez
Deputy City Attorney
83184 Page 30 of 30