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Res No 176-22-15929RESOLUTION NO: 176-22-15929 A Resolution of the Mayor and City Commission of the City of South Miami, Florida, approving the law firm of Weiss Serota Helfman Cole & Bierman, P .L., as City Attorney, and appointing Tony Recio and Lilian Arango as the City Attorneys; authorizing the Mayor to execute an agreement for legal services; providing for severability; providing for an effective date. WHEREAS, Section 7 of the City of South Miami (the "City") Charter provides that the City Commission shall appoint the City Attorney to serve as the legal advisor for the City; and WHEREAS, the City Attorney position is open and is in need of filling on a permanent basis; and WHEREAS, pursuant to Section 5.H of the Charter, contracts for legal services approved by the City Commission are not subject to competitive bidding procedures; and WHEREAS, Tony Recio and Lilian Arango meet the criteria established in Section 7 of the Charter for appointment as lead City Attorneys, and the law firm of Weiss Serota Heitman Cole & Bierman, P.L., is well qualified, can provide diverse and specialized legal services, and has a distinguished track record of serving municipalities in South Florida as their counsel; and WHEREAS, the Commission finds it in the City's best interest to approve the law firm of Weiss Serota Heitman Cole & Bierman, P.L. for rendering of legal services to the City, and to appoint Tony Recio and Lilian Arango as lead City Attorneys. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA THAT: Section 1. Recitals. The foregoing recitals are true and correct, and are adopted as if fully set forth in the body of this Resolution. Section 2. Appointment. The Mayor and City Commission approve the law firm of Weiss Serota Heitman Cole & Bierman, P.L. for rendering of legal services to the City, and appoint Tony Recio and Lilian Arango as lead City Attorneys. Section 3. Contract for Legal Services. The Mayor is authorized to enter into, on behalf of the City, the agreement for legal services with Weiss Serota Heitman Cole & Bierman, P.L., for services as City Attorney, attached as Exhibit "A." Section 4. Severability. If any section clause, sentence, or phrase of this resolution is for any reason held invalid or unconstitutional by a court of competent jurisdiction, the holding shall not affect the validity of the remaining portions of this resolution. Page 1 of 2 Res. No. 176-22 -15929 Section 5. Effective Da t e. This reso l ution sha l l become effective i mmed i ately upon adopti on. PASSED AN D A DOP TED t hi s 20th day of December, 2022. ATTES T : CITY CL'£K READ AN D APPROV ED AS TO FORM, LA NGU A GE , LEG A LIT Y A ND Page 2 of 2 APPROVED : COMM ISSION VOTE: Mayor Fernandez: Vice Mayor Bon ich: Commissioner Calle: 5-0 Yea Yea Yea Commissioner Corey: Yea Commiss ioner Liebman: Yea Agenda Item No:9. City Commission Agenda Item Report Meeting Date: December 20, 2022 Submitted by: Nkenga Payne Submitting Department: City Clerk Item Type: Resolution Agenda Section: Subject: A Resolution of the Mayor and City Commission of the City of South Miami, Florida, approving the law firm of Weiss Serota Helfman Cole & Bierman, P.L., as City Attorney, and appointing Tony Recio and Lilian Arango as the City Attorneys; authorizing the Mayor to execute an agreement for legal services; providing for severability; providing for an effective date. 3/5 (Mayor Fernández) Suggested Action: Attachments: Resolution Appointing WSH as City Attorney - rev.docx South Miami Retainer 12-13-22v.pdf 1 VIA E-Mail: jferna n dez@s ou thmiam ifl .gov Ho norable Mayor Javier Fe rnan dez & Co mmissioners City of South Miami 61 30 Sunset Dr ive South Mia m i, Florida 33143 SEROTA COLE + BIERMAN December 21, 2022 TONY RECIO, PARTNER trecio@wsh-law.com Re: Retainer Agreement for Legal Services Dear Ma y or Ferna n dez: We a r e p leased t h a t t he City of So uth Miami (t h e "C ity") w ishes to engage our Fi rm to perform legal services as the City Attorney. Our Fi r m is t h e preeminent fu ll-service m u nicipal law firm in Florid a dedicated to serving as th e "one-stop s h op " fo r mun icipalities seek ing the services of a law fi rm that has t h e expertis e to handle v irtually all of the lega l issu es faced by municipalities. This l etter is intended to set forth our understanding as to the nature and scope of t h e legal services w e will prov id e for the City, the amount of our fees for those services, the manner in which our fees fo r those ser v ices shall be determined and the terms upon which you will make payment. 1. Nature of Le ga l Servi ces. You have engaged our Firm to s erve as the City Attorney. We will provide all legal services to the City cust omarily performed by city attorneys a n d as required by the City Ch a rter and di rected by the City Commission and administration. Our services will include the fo llowing: a) Attenda n c e at regu l ar, sp ecia l, and emergency meetings of the City Commission, the Environme ntal Review & Preservation Board (the "ERPB"), and the Planning Board; b) Legal co u nsel co n sistent with ro le of City Attorney for the Mayor and City Commission, City Ma n ager, City Clerk, the ERPB, the Planning Board, and the heads of all City departments upon r equ est (including t elephone calls, emails, teleconferences, a n d video conferences); c) Preparat io n , review for legal sufficiency, and/or review of all ordinances, r esolutions, contracts fo r general services or infrastructure, and other wri tten instruments; d) Prep aration of legal opinions on mat ters affecting the City when directed by the City Commission or the City Ma n ager; e) Attenda n ce a t City Ma n ager staff m eeti ngs upon request; and f) Pe rforman ce of a ll d u ties r equired of the City Attorney pursuant to the City Charter and City Code (collectively, "Gen eral Municipal Services"). 2800 PONCE DE LE ON BOULEVARD, 12 t h FLOOR. CORAL GABLES, FLORIDA 33 134 Honorable Mayor Javier Fernandez & Commissioners City of South Miami December 21, 2022 Page2 Additional services, including without limitation labor and employment representation, litigation, eminent domain, specialized services, costs for any legal fees paid or recoverable from third parties (including development projects or applications subject to cost recovery), Requests for Proposals or Qualifications for real estate or construction not covered as general services or infrastructure, bond work, or Special Projects as further described herein (collectively "Excluded Services"), shall be billed on an hourly basis. Litigation includes adversarial proceedings before administrative tribunals, courts, mediators, arbitrators, and appellate tribunals. Special Projects include non-recurring, unanticipated major projects (e.g. rewrite of land development regulations, Evaluation and Appraisal Report and related Comprehensive Plan amendments, general obligation bonds) not already identified in the City's current adopted budget for the 2022-2023 Fiscal Year. 2. Fees for Services. The Firm will provide General Municipal Services to the City at a fixed or flat fee of $20,000 per month or $240,000 annually. The fixed or flat fee does not include Excluded Services which may be performed by our firm and, with the exception of costs for any legal fees paid or recoverable from third parties (including development projects or applications subject to cost recovery), billed on an hourly basis, at a rate of $300 per hour for attorneys and $150 per hour for paralegals, or flat rates mutually agreed upon as an excluded matter may arise. Legal fees paid or recoverable from third parties (including development projects or applications subject to cost recovery) will be billed for payment by third parties at adjusted market rates. The flat fee rate includes a discount to enable absorption of your current City Attorney's severance package. The City will not be charged for travel-related expenses to and from the City (e.g. tolls, mileage) for providing General Municipal Services. The flat or fixed fee, and hourly rates for Excluded Services, will be adjusted by a 3% increase annually. For Excluded Services, it is our practice to charge for actual time expended on your behalf, but not less than 2/lOths of an hour for each activity. 3. Costs. In addition to the fees discussed in paragraph 2, we anticipate that certain expenses may be incurred and advanced on your behalf. These expenses may include recording costs, out-of-town travel expenses, delivery charges, long distance telephone charges, photocopies (xerox), special postage (express mail, certified mail and the like), computer research charges, court reporter expenses (including cost of transcript and court reporter's fee for attendance), court costs (such as filing fees, service of process, newspaper publication costs, subpoena costs, witness fees, recording fees, etc.), accounting and appraisal fees, expert fees, trial/hearing exhibit costs, and investigation costs. In addition to our fees for legal services, you agree to pay us for such out-of-pocket expenditures. We agree to seek approval from the City prior to incurring expenses that exceed $500 in any calendar month. 4. Payment of Fees and Costs. Our invoices will be submitted to you on a monthly basis and each invoice will be due and payable when rendered. You must understand that if any invoice remains unpaid for more than 30 days after it is rendered, we reserve the right, in our discretion (subject to court approval, if necessary), to cease to provide further legal services to the City. You will, however, be liable to us for the payment of any fees earned and any costs incurred by us to that time, together with any applicable taxes. MIAMI I FT. LAUDERDALE I BOCA RATON I TAMPA I GAINESVILLE I WSH-LAW.COM Honorable Mayor Javier Fernandez & Commissioners City of South Miami December 21, 2022 Page 3 5. Representation of Other Clients. We are bound by rules of legal ethics not to represent any client if the representation of that client will be directly adverse to the interests of another client unless each such client consents to such representation after consultation. Should such a situation arise, you will be immediately informed and a proposed manner to address the conflict will be provided byus. 6. Withdrawal from Representation. The Ci t y at any time may choose to terminate this retainer agreement with or without cause and shall only be liable for any fees and costs incurred to the date of termination. We, likewise, reserve the right to withdraw from representing the City if you have m isrepresented or failed to disclose material facts to us, or if we disagree about the course of action which should be pursued. 7. Commencement of Representation. If the foregoing is agreeable to you, please acknowledge your understanding and agreement by having the Acknowledgement and Agreement section below executed. We stand ready and able to commence representation effective January 1, 2023. We appreciate your confidence in our Firm and we assure you that we will make every effort to perform our services in a prompt and efficient manner and ensure a seamless transition from City Attorney Thomas Pepe. Thank you for your consideration of our Firm. Very truly yours, WEISS SEROT A HELFMAN COLE & BIERMAN, P.L. < ---Tony Recio Lillian Arango M IAMI I FT. LAU DERDAL E I BOCA RATON I TAMPA I GAINESVILLE I WSH-LAW.COM Honorable Mayor Javier Fernandez & Commissioners City of South Miami December 21, 2022 Page4 Acknowledgement and Agreement Having been duly authorized by an affirmative vote of the City of South Miami Commission, the undersigned h as read this retainer agreement and on behalf of the City of South Miami, agrees to the terms set forth herein. AGREED AND AC CEPTED on -~~~J-~_, 2 022. CITY OF SOUTH MIAMI TR /ms MIAM I I FT . LAUDERDA LE I BOCA RATO N I TAMPA I GAINESVILLE I WSH -LAW.COM TONY RECIO, PARTNER trecio@wsh-law.com 2800 PONCE DE LEON BOULEVARD, 12th FLOOR, CORAL GABLES, FLORIDA 33134 December 13, 2022 VIA E-Mail: jfernandez@southmiamifl.gov Honorable Mayor Javier Fernandez & Commissioners City of South Miami 6130 Sunset Drive South Miami, Florida 33143 Re: Retainer Agreement for Legal Services Dear Mayor Fernandez: We are pleased that the City of South Miami (the “City”) wishes to engage our Firm to perform legal services as the City Attorney. Our Firm is the preeminent full-service municipal law firm in Florida dedicated to serving as the “one-stop shop” for municipalities seeking the services of a law firm that has the expertise to handle virtually all of the legal issues faced by municipalities. This letter is intended to set forth our understanding as to the nature and scope of the legal services we will provide for the City, the amount of our fees for those services, the manner in which our fees for those services shall be determined and the terms upon which you will make payment. 1. Nature of Legal Services. You have engaged our Firm to serve as the City Attorney. We will provide all legal services to the City customarily performed by city attorneys and as required by the City Charter and directed by the City Commission and administration. Our services will include the following: a) Attendance at regular, special, and emergency meetings of the City Commission, the Environmental Review & Preservation Board (the “ERPB”), and the Planning Board; b) Legal counsel consistent with role of City Attorney for the Mayor and City Commission, City Manager, City Clerk, the ERPB, the Planning Board, and the heads of all City departments upon request (including telephone calls, emails, teleconferences, and video conferences); c) Preparation, review for legal sufficiency, and/or review of all ordinances, resolutions, contracts for general services or infrastructure, and other written instruments; d) Preparation of legal opinions on matters affecting the City when directed by the City Commission or the City Manager; e) Attendance at City Manager staff meetings upon request; and f) Performance of all duties required of the City Attorney pursuant to the City Charter and City Code (collectively, “General Municipal Services”). Additional services, including without limitation labor and employment representation, litigation, eminent domain, specialized services, costs for any legal fees paid or recoverable from third parties (including development projects or applications subject to cost recovery), Requests for Proposals or Qualifications for real estate or construction not covered as general services or infrastructure, bond work, or Special Projects as further described herein (collectively “Excluded Services”), shall be billed on an hourly basis. Litigation includes adversarial proceedings before administrative tribunals, courts, mediators, arbitrators, and appellate tribunals. Special Projects include non-recurring, unanticipated major projects (e.g. rewrite of land development 4 Honorable Mayor Javier Fernandez & Commissioners City of South Miami December 13, 2022 Page 2 MIAMI I FT. LAUDERDALE I BOCA RATON I TAMPA I GAINESVILLE I WSH-LAW.COM regulations, Evaluation and Appraisal Report and related Comprehensive Plan amendments, general obligation bonds) not already identified in the City’s current adopted budget for the 2022-2023 Fiscal Year. 2. Fees for Services. The Firm will provide General Municipal Services to the City at a fixed or flat fee of $20,000 per month or $240,000 annually. The fixed or flat fee does not include Excluded Services which may be performed by our firm and, with the exception of costs for any legal fees paid or recoverable from third parties (including development projects or applications subject to cost recovery), billed on an hourly basis, at a rate of $300 per hour for attorneys and $150 per hour for paralegals, or flat rates mutually agreed upon as an excluded matter may arise. Legal fees paid or recoverable from third parties (including development projects or applications subject to cost recovery) will be billed for payment by third parties at adjusted market rates. The flat fee rate includes a discount to enable absorption of your current City Attorney’s severance package. The City will not be charged for travel-related expenses to and from the City (e.g. tolls, mileage) for providing General Municipal Services. Unless otherwise modified as part of an adopted budget, beginning with the one-year anniversary of this retainer agreement, the flat or fixed fee, and hourly rates for Excluded Services, will be adjusted by up to a 5% increase annually. For Excluded Services, it is our practice to charge for actual time expended on your behalf, but not less than 2/10ths of an hour for each activity. 3. Costs. In addition to the fees discussed in paragraph 2, we anticipate that certain expenses may be incurred and advanced on your behalf. These expenses may include recording costs, out-of-town travel expenses, delivery charges, long distance telephone charges, photocopies (xerox), special postage (express mail, certified mail and the like), computer research charges, court reporter expenses (including cost of transcript and court reporter's fee for attendance), court costs (such as filing fees, service of process, newspaper publication costs, subpoena costs, witness fees, recording fees, etc.), accounting and appraisal fees, expert fees, trial/hearing exhibit costs, and investigation costs. In addition to our fees for legal services, you agree to pay us for such out-of-pocket expenditures. 4. Payment of Fees and Costs. Our invoices will be submitted to you on a monthly basis and each invoice will be due and payable when rendered. You must understand that if any invoice remains unpaid for more than 30 days after it is rendered, we reserve the right, in our discretion (subject to court approval, if necessary), to cease to provide further legal services to the City. You will, however, be liable to us for the payment of any fees earned and any costs incurred by us to that time, together with any applicable taxes. 5. Representation of Other Clients. We are bound by rules of legal ethics not to represent any client if the representation of that client will be directly adverse to the interests of another client unless each such client consents to such representation after consultation. Should such a situation arise, you will be immediately informed and a proposed manner to address the conflict will be provided by us. 6. Withdrawal from Representation. The City at any time may choose to terminate this retainer agreement with or without cause and shall only be liable for anu fees and costs incurred to the date of termination. We, likewise, reserve the right to withdraw from representing the City if you have misrepresented or failed to disclose material facts to us, or if we disagree about the course of action which should be pursued. 7. Commencement of Representation. If the foregoing is agreeable to you, please acknowledge your understanding and agreement by having the Acknowledgement and Agreement section below executed. We stand ready and able to commence representation immediately or whatever date the City Commission determines. We appreciate your confidence in our Firm and we assure you that we will make every effort to perform our services in a prompt and efficient manner and ensure a seamless transition from City Attorney Thomas Pepe. 5 Honorable Mayor Javier Fernandez & Commissioners City of South Miami December 13, 2022 Page 3 MIAMI I FT. LAUDERDALE I BOCA RATON I TAMPA I GAINESVILLE I WSH-LAW.COM Thank you for your consideration of our Firm. Very truly yours, WEISS SEROTA HELFMAN COLE & BIERMAN, P.L. Tony Recio Lillian Arango 6 Honorable Mayor Javier Fernandez & Commissioners City of South Miami December 13, 2022 Page 4 MIAMI I FT. LAUDERDALE I BOCA RATON I TAMPA I GAINESVILLE I WSH-LAW.COM Acknowledgement and Agreement Having been duly authorized by an affirmative vote of the City of South Miami Commission, the undersigned has read this retainer agreement and on behalf of the City of South Miami, agrees to the terms set forth herein. AGREED AND ACCEPTED on _______________, 2022. CITY OF SOUTH MIAMI By: Javier Fernandez Mayor TR/ms 7