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HomeMy Public PortalAbout21-9925 Settlement Agreement in the Case of George SuarezSponsored by: City Manager and City Attorney RESOLUTION NO. 21-9925 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF OPA-LOCKA, FLORIDA, RATIFYING EXECUTION OF A SETTLEMENT AGREEMENT IN THE CASE OF GEORGE SUAREZ, ET AL. V. CITY OF OPA- LOCKA, ATTACHED HERETO AS EXHIBIT "A"; AUTHORIZING THE CITY MANAGER TO TAKE ALL NECESSARY ACTION; PROVIDING FOR AN EFFECTIVE DATE WHEREAS, on August 26, 2021, the parties in the case of George Suarez et. al. vs. City of Opa-Locka, Case Number 2017 -008285 -CA -01, began Court ordered mediation proceedings; and WHEREAS, neither party admits liability in this matter, however, in an effort to resolve the pending controversy, all parties desire to amicably resolve all claims and avoid continued litigation; and WHEREAS, pursuant to the terms of the settlement, as well as time constraints imposed due to the case's status, the settlement agreement, attached hereto as Exhibit "A", was executed by the City Manager, and WHEREAS, the City Commission desires to ratify the execution of the Settlement Agreement with the intended purpose of resolving all claims, as set forth in Exhibit "A". NOW THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF OPA-LOCKA, FLORIDA, THAT: Section 1. Adoption, of Representations. The foregoing "Whereas" clauses are hereby ratified and confirmed as being true and the same are hereby made a specific part of this Resolution. Section 2. Approval of Settlement Agreement. The City Commission of the City of Opa-Locka hereby ratifies the execution of the settlement agreement between the Plaintiffs George Suarez, et. al. and the City of Opa-locka, consistent with the Agreement attached hereto as Exhibit "A"; and further authorizes the City Manager to take all necessary action consistent with this Resolution. Resolution No. 21-9925 Section 3. Scrivener's Errors. Sections of this Resolution may be renumbered or re -lettered and corrections of typographical errors which do not affect the intent may be authorized by the City Manager, and approved by the City Attorney, without need of public hearing, by filing a corrected copy of same with the City Clerk. Section 4. Effective Date. This Resolution shall take effect upon the adoption and is subject to the approval of the Governor or Governor's Designee. PASSED AND ADOPTED this 13th day of October, 2021. Matthew A. Pigatt, Mayor ATTEST: a Flores, City Clerk APPROVED AS TO FORM AND LEGAL SUFFICIENCY: Burnadette Norri City Attorney Moved by: COMMISSIONER TAYLOR Seconded by: COMMISSIONER DAVIS Resolution No. 21-9925 VOTE: 4-0 Commissioner Taylor YES Commissioner Bass YES Commissioner Davis YES Vice -Mayor Williams ABSENT Mayor Pigatt YES EXHIBIT A SETTLEMENT AGREEMENT AND GENERAL RELEASE This Settlement Agreement and General Release ( "Agreement") dated September 3 0, 2021 ("Effective Date") is entered into among the named Plaintiffs and Class Representatives: GEORGE SUAREZ, TANIA SUAREZ, ROSCOE PENDLETON, CHARAF RAAD, STEVEN BARRETT, NATASHA ERVIN, TAXES BY NATASHA ERVIN, a Florida Corporation, and ALFONSO ERVIN III (Plaintiff/Class Representative Adel Raad was removed as Class Representative by Court Order due to health issues), for themselves and on behalf of all similarly situated persons ("Class Plaintiffs" or "Class Representatives"); and the CITY OF OPA- LOCKA, FLORIDA ("City" or "Defendant") (and together with the Class Plaintiffs referred to individually as a "Party" or collectively as the "Parties"). RECITALS WHEREAS, Class Plaintiffs filed a class action lawsuit against the City in the Circuit Court for the Eleventh Judicial Circuit in and for Miami -Dade County, Florida, Case No. 2017 -008285 -CA -01 styled George Suarez, et al. v. City of Opa- Locka, Florida (the "Litigation"); WHEREAS, the Class Plaintiffs allege in their Complaint that the City did not provide accurate water billing to the residents and/or commercial water customers and suffered an economic loss as a result of the billings; WHEREAS, the City denied the Class Plaintiffs' allegations; WHEREAS, by Order dated June 7, 2019, the Circuit Court certified two classes in this matter, (1) the Deposit Class and (2) the Overcharge Class, as fully defined in the Certification Order, appointed Class Plaintiffs as Class Representatives with full authority to litigate on behalf of all unnamed class members, and appointed Michael A. Pizzi, Jr., David P. Reiner, and Benedict P. Kuehne, and their respective law firms as class counsel ("Class Counsel"); 1 WHEREAS, each Party examined and considered the benefits obtained by this Agreement, the risks associated with continuing this complex, costly and time-consuming Litigation, and the value of certainty of resolution to all Parties. The Class Plaintiffs and Class Counsel concluded that the proposed settlement contained herein is fair, adequate, reasonable, and in the best interests of the members of the class; and, WHEREAS, nothing in this Agreement constitutes an admission of liability or wrongdoing by any Party; WHEREAS, the Parties desire to resolve and end any and all claims and potential claims in, related to, or arising from the Litigation. NOW, THEREFORE, it is agreed between the Parties to fully and finally settle and completely dispose of all existing or potential issues, claims, causes of action, grievances, and disputes between them concerning, alleged in, arising from, or resulting from the Litigation without any admission as to liability. Accordingly, the Parties agree as follows: SETTLEMENT TERMS I. Recitals: The recitals are incorporated by reference in their entirety as if fully set forth and made a part of this Agreement. II. Court and Administrative Approvals: a. The Parties acknowledge that this Agreement is subject to both preliminary and final Court approval pursuant to Rule 1.220(e), Florida Rules of Civil Procedure. The Parties stipulate and agree that they will file a joint motion seeking approval of the Settlement Agreement with all the terms set forth herein (the "Joint Motion"). 2 b. The Class Plaintiffs acknowledge that the City must obtain approval of this Agreement from the City Board of Commissioners and the Florida Oversight Board. The City shall take the necessary steps to obtain such approval as expeditiously as possible. The Parties agree they shall file the Joint Motion within three (3) business days of the date this Agreement is fully approved by both the City Board of Commissioners and the Florida Oversight Board. III. Settlement Fund: The City will fund a Class Settlement Fund with a value of up to $3 million (Three Million Dollars) as follows: a. Cash Fund: Within 30 days of Court's order approving this Agreement (excluding preliminary approval) becoming final, the City will pay $1 million (One Million Dollars) to a Cash Settlement Account ("Cash Fund") to be administered by a court -appointed claims' administrator(defined below) and distributed pursuant to an agreed upon claims process. As used in this subsection, the term "becoming final" means the expiration of any rehearing, objections, and/or appeal periods (including deadlines for submission of review to the Florida Supreme Court or U.S. Supreme Court appeals) or in the event of an appeal or other certiorari review, the issuance of the mandate from the appeals court finally resolving this matter. The Cash Fund shall be used to pay valid Claims and Court approved fees, costs, including costs to administer the claims process, and Class Representative awards. Any remaining funds shall revert to the City. The Parties acknowledge and agree that a reverter of the remaining Cash Funds is appropriate under the circumstances of the Litigation. To be clear, the City shall not be required to pay more than $1 million (One Million Dollars) in cash to fund the settlement of the Litigation. b. Credit Fund: The City agrees to provide a credit up to $2 million (Two Million Dollars) to be applied towards the accounts 3 receivable balances on City water accounts for water charges during the Class Period, as defined in Section VI below ("Accounts Receivable Credit") of Class Members, as defined in Section VI below, who submit valid and approved claims. To be clear, the City shall not be required to provide more than $2 million (Two Million Dollars) in Accounts Receivable Credit and such credits shall not apply to water charges and accounts receivable balances incurred after the Class Period. IV. Fees, Costs and Awards: The City is not responsible for payment of Class Counsels' attorneys' fees, costs, Class Representative award(s), expert fees, costs associated with notice and administration of this Agreement, or the Claims Administrator (such fees costs and expenses are referred to herein as "Fees and Costs"). Any Fees and Costs to Class Plaintiffs shall be approved by the Court and shall be paid exclusively from the Cash Fund. The City hereby acknowledges that an award of Fees and Costs from the Cash Fund is appropriate under the circumstances of the Litigation and agrees not to oppose any motion for Fees and Costs filed by the Class Plaintiffs. However, the City's counsel is not precluded from responding to any statements or representations concerning its fees to the extent the Class Plaintiffs rely on such in support of their requests for fees. This Agreement is not conditioned upon the award of any set or minimum amount of Fees and Costs. V. Class Notice: On September 19, 2019, the Court approved the terms of the Class Notice pursuant to Rule 1.220(d)(2), Florida Rules of Civil Procedure. Class Plaintiffs represented and provided proof that they provided Notice to class members in the form of a mailing to over 12,000 past and present water customers with accounts during the Class Period and via a website at https://reinerslaw.com/opa_locka_class_action/. The Class Notice set forth the Court approved Opt -Out deadline. Class Plaintiffs' counsel represented that they only received 10 Opt -Outs, which have been fully disclosed in the Notice filed on September 17, 2021. The Parties stipulate and agree the Class Notice was sufficient to satisfy the notice requirements under Rule 1.220(d)(2). 4 VI. Class Definition and Class Period: The Parties agree that the Class Definition shall be amended to correct the fail-safe issue and to more clearly define as Class Members all persons and entities who had residential and/or commercial water utility accounts with the City that were active anytime during the Class Period defined as April 1, 2012, up to and including December 31, 2019. VII. Third Party Claims Administrator: The Parties agree that the claims process will be administered by a mutually agreed upon Claims Administrator who shall be identified in the Joint Motion. VIII. Class Settlement Notice: Subject to the Court's approval, the Parties agree that the following Notice Program is sufficient to satisfy the notice requirements of Rule 1.220(e), Florida Rules of Civil Procedure, and the due process rights of the Class Members, and constitutes the best notice practicable under the circumstances of the Litigation: (a) Within five (5) business days of the Court providing preliminary approval on this Agreement, the Claims Administrator will mail the agreed upon form of Class Settlement Notice to the last known address available in the City's billing system for all Class Members. (b) The text and format of the Class Settlement Notice shall be mutually agreed to by the Parties and included in the Joint Motion. The Class Settlement Notice shall include the deadline for submitting written objections to the Agreement which must be filed with the Court by the objection deadline. IX. Claims Process: Within 45 (forty-five) days of the Court's Order approving this Agreement becoming final (as defined in Section III(a)), the Claims Administrator shall notify or attempt to notify Class Members ("Notification Period") that they may be entitled to a cash disbursement or Accounts 5 Receivable Credit. Notification shall be by mailer and by publication. Class Members shall then have 90 (ninety) days ("Claims Period") to complete and present a claim form to the Claims Administrator who shall verify their Class Member status and the validity of the Claim. The minimum requirement to be applied by the Claims Administrator is as follows: a. The Claim Forms must be returned via mail to the Claims Administrator and postmarked on or before the expiration of the Claims Period. b. The Claim Form must include a name, coordinating account number and address that matches the name, coordinating account number and address in the City's billing database for an account that was active within the Class Period. c. The Claim Form must require a copy of a valid form of identification for a residential Class Member and an EIN number for a commercial Class Member. d. The Claim Form must require the residential Class Members to provide the number of bathrooms and bedrooms in the residence and whether there was a working sprinkler system and/or pool on the premises. e. The Claim Form must require commercial Class Members to provide their operating hours and any seasonal hours, and the nature of the business. At the end of the Claims Period, the Claims Administrator shall disburse funds or direct the City to apply the Accounts Receivable Credit to Class Members, as appropriate, after applying the agreed and approved claims procedure set forth in the Joint Motion. The Parties agree that the disbursement criteria will include a rational and reasonable basis for determining those Class Members 6 entitled to a cash disbursement or Accounts Receivable Credit and the amount thereof. The Parties agree that Class Members with an account receivable balance who submit a valid Claim shall be entitled to a credit from the Credit Fund and shall not be entitled to disbursement from the Cash Fund. Should the valid Claims exceed the balance of the Cash and Credit Funds, the valid Claims shall be paid or applied on a pro rata basis. Should there be a balance remaining in the Cash or Credit Funds accounts after all valid Claims are processed those funds or Accounts Receivable Credits shall revert to the City. The Parties agree that the Claims Period shall remain open for no more than three (3) months. X. Non-Disparagement/Mutual Statement: The Parties agree not to disparage each other regarding the issues in the Ligation and/or this Agreement. The Parties agree that any statements to the media will include the statement that this Agreement is fair, adequate, and in the best interest of the Class Members and residents of the City of Opa-Locka. XI. Release: The Class Plaintiffs, on behalf of themselves and as Class Representatives on behalf of Class Members, in consideration for the settlement benefits set forth herein, the sufficiency of which is acknowledged, hereby fully and forever irrevocably and unconditionally waive, abandon, release, discharge, and settle with prejudice any and all claims, demands, causes of action, and any right of any kind or nature whatsoever, whether at law or equity, known or unknown, direct, indirect or consequential, liquidated or unliquidated, foreseen or unforeseen, developed or undeveloped, arising under common law, regulatory law, statutory law, or otherwise, whether based on federal, state, or local law, statutes or ordinance, regulation, code, contract, or any other source, or any claims that Class Plaintiffs or Class Members ever had, now have, may have, or hereafter can, shall, or may ever have against the City of Opa-Locka, its successors, agents, attorneys, consultants, employees, and assigns, in any courtroom tribunal, arbitration panel, commission, agency, or before any governmental and/or administrative body on the basis of, arising from, or relating the claims alleged in the Litigation and/or Chapter 21 of the City of Opa- Locka Municipal Code from the beginning of time through the date of this 7 Agreement. Nothing contained herein is intended to release the Parties from their obligations under this Agreement. XII. Voluntary Dismissal: Within five days of Court's entry of an Order approving this Agreement, the Class Plaintiffs shall dismiss the Litigation and the pending discretionary review in the Florida Supreme Court, George Suarez, et al. vs. City of Opa Locka, Florida, Case Number: SC21-482, with prejudice. XIII. Miscellaneous Provisions: a. Binding Effect: This Agreement shall be binding upon and inure to the benefit of, the heirs, successors, and assigns of the Parties. b. Cooperation of the Parties: The Parties agree to cooperate in good faith to timely submit the joint motion for approval and prosecute approval of this Agreement against any objections. The Parties agree to support and pursue approval of a Class Settlement with the terms contained herein and are bound by these terms even if the Court denies approval. if the Court denies approval, the Parties will work cooperatively to obtain approval on terms acceptable to the Court. c. Obligation to Meet and Confer: Prior to filing any motion in the Court raising a dispute arising out of or related to this Agreement, the Parties shall consult each other and certify to the Court that they have consulted each other prior to seeking any Court ruling. d. Integration: This Agreement constitutes a single, integrated written contract expressing the entire agreement of the Parties relative to the Litigation and the matters addressed herein and specifically incorporates and replaces the Mediated Settlement s Term Sheet. To the extent this Agreement conflicts with the Mediated Settlement Term Sheet, this Agreement shall supersede and is deemed to be the governing document for the settlement of the Litigation. No covenants, agreements, representations, or warranties of any kind whatsoever have been made by any Party hereto except as provided for herein. e. Modification and Amendment: This Agreement may be amended or modified only by a written instrument signed by the Parties. f. No Waiver: The waiver by any party of any breach or non-performance of any part of this Agreement by the other Party shall not be deemed or construed as a waiver of any other breach or non-performance under the Agreement, whether prior, subsequent, or contemporaneous. g. No Reliance; Independent Investigation: The Parties acknowledge and agree that each relies on their own investigation and judgment in relation to all matters contained herein and has not relied on any representations made by the other Party except as expressly set forth in this Agreement. h. No Admission by the Parties. The Parties agree that neither this Agreement nor the payment of money or provision of accounts receivable credit or any other consideration under this Agreement shall be interpreted as an admission of liability. This Agreement does not reflect the Parties' views of their legal rights and obligations. The consideration paid under this Agreement is intended solely to avoid the expense and uncertainty of litigation. Neither this Agreement nor any of the negotiations connected with it, nor any action taken to carry out this Agreement shall be referred to or offered as evidence in any pending or future judicial action or adversary proceeding, except in a proceeding to enforce the terms of 9 this Agreement or to defend against claims subject to the release contained herein or as otherwise required by law. i. Authority: The Parties represent and warrant that the person(s) signing this Agreement on their behalf have full power and authority to bind the Parties to all the terms of this Agreement. Any person executing this Agreement in a representative capacity represents and warrants that he or she is fully authorized to do so and to bind the Party on whose behalf he or she signs this Agreement to all terms and provisions of the Agreement. j. Counterparts: The Parties may execute this Agreement in multiple counterpart originals. Facsimile, email, or other digital signatures shall have the same force and effect as original signatures. IN WITNESS WHEREOF, the Parties have hereunto executed this Agreement in counterpart. MICHAEL A. PIZZI, JR. Court Approved Class Counsel, Authorized Representative of Class Plaintiffs and Class Representatives 3m.) aaa 1 r, City of Opa-Locka Dat 10