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Home My Public Portal About09-7942 Steven Barrett Sponsored by: City Attorney RESOLUTION NO. 09-7 9 4 2 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF OPA-LOCKA, FLORIDA, APPROVING THE CLASS ACTION SETTLEMENT AGREEMENT IN THE MATTER OF STEVEN BARRETT V. CITY OF OPA- LOCKA PURSUANT TO THE TERMS SET FORTH IN ATTACHED EXHIBIT "A"; FURTHER AUTHORIZING THE CITY MANAGER TO MAKE PAYMENT TO PLAINTIFF AND RESPECTIVE COUNSEL IN THE TOTAL AMOUNT OF TWO HUNDRED AND SEVENTY FIVE THOUSAND DOLLARS ($275,000.00), AS FULL AND FINAL SETTLEMENT OF PENDING LITIGATION AGAINST THE CITY OF OPA-LOCKA WHEREAS, on or about March 8, 2006, Steven Barrett ("Barrett") initiated legal action against the City of Opa-locka ("City") in the 11`h Judicial Circuit in and for Miami-Dade County, Florida, Case No.: 06-04499 CA (23); and WHEREAS, the City and Barrett desire to amicably settle the pending litigation in accordance with the terms of the proposed settlement agreement, set forth in and attached as Exhibit "A" hereto; and WHEREAS,the City Commission of the City of Opa-locka("City Commission") desires to approve the class action settlement agreement in the total amount of Two Hundred and Seventy Five Thousand Dollars ($275,000.00), in accordance with the terms of the proposed settlement agreement, set forth and attached as Exhibit "A" hereto, as full and final settlement of the pending litigation against the City. NOW, THEREFORE, BE IT DULY RESOLVED BY THE CITY COMMISSION OF THE CITY OF OPA-LOCKA,FLORIDA: Section 1. The recitals to the preamble are hereby incorporated by reference. Resolution No. 0 9—7 9 4 2 Section 2. The City Commission of the City of Opa-locka hereby approves the class action settlement agreement, related to Case No.: 06-04499 CA (23), in the 11th Judicial Circuit in and for Miami-Dade County, Florida, as set forth in Exhibit "A" attached hereto, for full and final settlement of the pending litigation. Section 2. The City Commission of the City of Opa-locka hereby approves the class action settlement agreement in the matter of Steven Barrett v. City of Opa-locka, pursuant to the terms set for in attached Exhibit "A" and further authorizes the City Manager to make payment to the Plaintiff and respective counsel in the total amount of Two Hundred and Seventy Five Thousand Dollars ($275,000.00), as full and final settlement and as more specifically set forth in Attached Exhibit"A.." Section 3. This resolution shall take effect immediately upon adoption. PASSED AND ADOPTED this 14 day of OCTOBER , 2009. _ 1 i/ " PH L. KE MAYOR Attest: 1 Approved as to form and legal sufficiency: eborah S. Ir Burnadette Norris„ eeks City Clerk / City Attorney - Moved by: JOHNSON Seconded by: HOLMES Commission Vote: 5-0 Commissioner Holmes: YES Commissioner Johnson: YES Commissioner Tydus: YES Vice-Mayor Taylor: YES Mayor Kelley: YES IN THE CIRCUIT COURT OF THE 11 TR JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA STEVEN BARRETT,Individually, GENERAL JURISDICTION DIVISION and as Class representative of all those similarly situated, CASE NO.: 06-04499-CA-23 1 Plaintiff, vs. CITY OF OPA-LOCKA, a Florida municipal corporation, • Defendant. SETTLEMENT AGREEMENT It is stipulated and agreed by all parties as follows: That we,STEVEN BARRETT,Individually and as class representative of the class certified by the Court, hereinafter refereed to individually as `Barrett," and as Class representative for all those similarly situated as"Class Plaintiffs", and defendant City of Opa-locka,hereafter referred to as"City",for good and valuable consideration as more fully set forth below,do hereby agree to the following: WHEREAS,on March 8,2006 Barrett commenced this action by filing a Complaint against the Defendant City on behalf of himself and all utility account holders with the City of Opa-locka that had been billed a 10% penalty interest charge during the period of March 8,2001 to the present. WHEREAS, on February 12, 2007, the Court certified a Class consisting of"all utility account holders with the City of Opa-locka that the City of Opa-locka billed a 10%penalty interest charge on during the period of March 8,2001 to the present time"the Court's order also designated Page 1 of 6 Steven Barrett as the Plaintiff Class Representative and Robert C. Maland, Esquire and Mark D. Press,Esquire as Plaintiff Class counsel. WHEREAS, following a non jury trial on the issue of liability, the Court on October 15, 2007 entered a partial final judgment which in relevant part found that "the compounding of customers penalty charges results in unjust and unreasonable rate". Moreover, the partial final judgment provided that the "City is enjoined from enforcing Ordinance 86-15, in the manner described supra, which ultimately results in.the imposition of multiple 10% late penalties on the same utility charge, even after said charge has gone unpaid for more than one month." WHEREAS, the parties desire to amicably resolve this action on the terms herein. Now therefore and in consideration of$10,000 to be paid to Barrett on behalf of the City,and for other good and valuable considerations,the receipt of which is hereby acknowledged,the parties agree as follows: 1. Following the execution of this agreement the parties will file a joint motion requesting court approval of this Settlement Agreement and will schedule a hearing for approval of the settlement. Said hearing presently is scheduled for December 18, 2009 at 2:45 p.m.. The Defendant City agrees that it will provide a copy of a jointly written explanation of the Settlement Agreement and notice of the hearing for approval of the Settlement Agreement to the City's present utility account holders together with their monthly utility bill. The Defendant City further agrees to pay the cost of publishing a brief summary of the terms of this settlement as well as information about the approval hearing in the South Florida Business Review and the parities agree that the publication of this notice shall be accomplished at least thirty Page 2 of 6 days in advance of the approval hearing. 2. Upon entry of a judicial order approving this Settlement Agreement,the Defendant City agrees that it will waive any rights it may have to appeal the partial fmal judgment and consents to the entry of a final judgment providing that the City will permanently abide by and conduct itself in conformity with the requirements of the partial final judgment entered by the Court on October 15, 2007. The City waives any defenses it may have to enforcement of the final judgment and any rights to appeal the final judgment are also waived by the City. 3. Within five(5)business days following the entry of a judicial order approving this Settlement Agreement, the Defendant City shall pay Barrett a Class representative fee of$10,000. 4. Within five(5)business days following the entry of a judicial order approving this Settlement Agreement,the Defendant City shall payPlaintiff's Class counsel,Robert C.Maland,Esquire an attorney's fee of$125,000,Plaintiff's Class counsel,Mark D. Press,Esquire an attorney's fee of$125,000,and shall pay Plaintiffs Class counsel by payment to Robert C. Maland, Esquire an additional $15,000 to reimburse Plaintiffs litigation costs. The City stipulates and agrees that the aforesaid legal fees take into account the past and future benefits to the class obtained by Plaintiff's Class counsel through this lawsuit,and all of the factors for setting a reasonable fee under the guidelines established by the Florida Bar and governing case law,and that said legal fees are fair and reasonable. 5. Upon approval of this Settlement Agreement by the Court,Barrett,individually,and Page 3 of 6 as representative of the Class Plaintiffs, agrees to execute and deliver to the City a Release of the claims brought in this action, excluding the obligations under this Settlement Agreement. A copy of the Release to be executed by Barrett individually, and as Class representative of the Class Plaintiffs is attached. 6. This Settlement Agreement shall become effective upon the entry of a judicial order approving this Settlement Agreement. In the event a judicial order approving this settlement is not obtained,this settlement agreement shall be void and of no further force and effect. 7. Upon Court approval of this Settlement Agreement,the Court shall retain jurisdiction to enforce the Settlement Agreement as well as the partial final judgment and final judgment to be entered herein. Following Court approval of the Settlement Agreement, if either party seeks to enforce any provision of the Settlement Agreement,the prevailing party shall be entitled to recover the reasonable attorney's fees and costs in connection with any enforcement proceeding. 8. The total of$275,000 due to plaintiff Barrett and his counsel under this settlement shall be paid by the City to Robert C.Maland,P.A.Trust Account within 5 business days of entry of a judicial order approving this Settlement Agreement. Said funds shall be held in escrow and shall not be released from the escrow and paid out until the earlier of either:a)the expiration of the 30 day time to appeal the order approving settlement (assuming no timely notice of appeal is filed) or 2) the final judicial resolution of any appeal(s) of the order approving settlement (assuming a timely notice of appeal is filed and approval of the settlement is affirmed).In the event that Page 4 of 6 there is an appeal and approval of the settlement is finally reversed, then the money held in escrow shall be returned to the City. 9. This Settlement Agreement may be executed in multiple parts and fax execution shall be binding as an original. Page 5 of 6 IN WITNESS WHEREOF, we have hereunto set our hand and seal this day of 61 ,2009. Steven Barrett,Individually Robert C.Maland,Esquire BY'�/f� r►' By Date/ _'7_ c77 Date /0-.2"O Steven Barrett as Class Representative Mark David Press,Esquire It, By, , ,� By: Date /0 `''7—' 07 Date /0'• S- / City of Opa-locka Michael T.Burke,Esquire By By: Date Date Page 6 of 6