HomeMy Public PortalAbout15-8972 To Execute and Agreement Retaining the Law Firm of Weiss SerotaSponsored by: City Attorney
RESOLUTION NO. 15-8972
A RESOLUTION OF THE MAYOR AND CITY COMMISSION
OF THE CITY OF OPA LOCKA, FLORIDA, AUTHORIZING
THE CITY MANAGER TO EXECUTE AN AGREEMENT
RETAINING THE LAW FIRM OF WEISS, SEROTA, HELFMAN
TO REPRESENT THE CITY IN A PENDING LAWSUIT
ENTITLED PARKER V. AMERICAN TRAFFIC SOLUTIONS
(ATS) CASE NUMBER 1:14 -CV- 24010, WITH ATS TO PAY ALL
FEES AND COST; PROVIDING FOR INCORPORATION OF
RECITALS; PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, A lawsuit has been filed against American Traffic Solutions, Case
Number 1:14 -cv- 24010, that also names the City of Opa -locka as a Defendant; and
WHEREAS, A provision of the City of Opa- locka's contract with ATS provides
that ATS must pay the City's legal fees and costs in this matter; and
WHEREAS, the Law Firm of Weiss, Serota, Helfman has provided the attached
retainer Agreement acknowledging that it will defend the City of Opa- locka, with ATS
paying all legal fees and costs; and
WHEREAS, approving this retainer agreement is in the best interests of the City.
NOW THEREFORE BE IT RESOLVED THAT THE CITY COMMISSION OF
THE CITY OF OPA LOCKA, FLORIDA:
Section 1. The recitals to the preamble herein are incorporated by reference.
Section 2. The City Commission hereby directs the Manager to execute the
attached retainer Agreement with Weiss, Serota, Helfman as Attorney's For the
City in Case Number 1:14 -CV- 24010, with ATS paying all legal fees and costs.
Section 3. This Resolution shall take effect immediately upon adoption.
Resolution No. 15 -8972
PASSED AND ADOPTED this 131h day of April, 2015.
yra L. Taylor
Mayor
Attest to:
Jo a Flores
Citv Clerk
Moved by:
Seconded by:
Commissioner Vote:
Commissioner Kelley:
Commissioner Pinder:
Approved as to form and legal sufficiency:
Vincent T. Brown
City Attorney
VICE MAYOR HOLMES
COMMISSIONER PINDER
4 -0
NOT PRESENT
YES
Commissioner Santiago: YES
Vice Mayor Holmes: YES
Mayor Taylor: YES
April 9, 2015
Vincent T. Brown
City Attorney
City of OpaLocka
3400 NW 135 Street
Building B
Opa- Locka, FL 33054
Re: Retainer Agreement
Dear Mr. Brown:
This letter will confirm that you have engaged our firm to represent the City of
OpaLocka, Florida (the "City" or "you ") in connection with that certain putative class action
lawsuit styled Parker, et al., v. American Traffic Solutions, Inc., et al., Case No. 1: 14- cv- 24010-
FAM(the "Action ") pending in the U.S. District Court for the Southern District of Florida. We
are pleased to have this opportunity to represent you, and we look forward to working with you
in this matter.
Scope of Engagement. Our firm is retained to act as the City's lead defense counsel in
the Action. Please understand that by acceptance of this engagement our firm is not undertaking
to represent the City or its interests in matters other than the defense of the Action. For this
reason, if you would like for us to provide representation on other matters, we will need to
confirm this by a separate agreement.
Staffmg.It is anticipated that Edward G. Guedes and Matthew H. Mandel will have
primary responsibility for your representation, taking the lead in strategic matters, court
appearances, depositions, settlement conferences, and other significant matters. We will involve
other firm lawyers and paralegals as we believe appropriate in the circumstances. We will
provide legal counsel to you in accordance with this letter and in reliance upon information and
guidance that you provide to us. We will endeavor to keep you reasonably informed of the
progress of the cases and of any significant developments and to respond to your inquiries in the
Vincent Brown, Esq.
April 9, 2015
Page 2 of 5
course of our engagement. This will include participating in executive sessions as requested by
you.
Cooperation. To enable us to represent you effectively, you agree to cooperate fully with
us in all matters relating to the Action, and to disclose to us fully and accurately all facts and
documents that may be relevant or that we may otherwise request. You agree to make a
designated representative reasonably available to attend meetings, conferences, hearings, and
other proceedings.
Advice About Possible Outcomes. Either at the commencement or during the course of
our representation, we may express opinions or beliefs concerning the cases or various courses of
action and the results that might be anticipated. Any such statement made by any lawyer or
employee of our firm is intended to be an expression of opinion only, based on information
available to us at the time, and should not be construed by you as a promise or guarantee.
Fees and Costs. As you know, American Traffic Solutions, Inc. ( "ATS ") has agreed to
fund the City's defense of the Action. In particular, ATS will pay the reasonable and necessary
fees and costs incurred by our firm in connection with the defense of the Action on behalf of the
City. As such, our firm will not look to the City to pay those fees, costs, and expenses and will
look solely to ATS to do so. To signify ATS's agreement to the economic terms of our
arrangement, we are asking ATS to sign this letter below agreeing to the terms in this section
titled "Fees and Costs." We will provide you with a copy of our invoices to be submitted to ATS
so that you can monitor the progress of the case.
ATS is agreeing to pay only the reasonable and necessary fees and costs incurred by our
firm in connection with the defense of the Action. ATS is not agreeing, and does not by signing
the letter agree, to pay the fees and costs of any other lawyer or law firm in connection with
defense of the Action. Nor is it agreeing to pay fees and costs incurred in matters other than the
defense of the Action. To the extent the City and ATS are to agree on the payment of such other
costs, such agreement must be documented in a separate writing.
We have agreed to charge and accept a discounted hourly rate of $235 for all time
expended by our attorneys. The rate multiplied by the time expended on your behalf, measured
in tenths of an hour, will be the basis for determining the fee. Any paralegal working on the
Action will be billed at an hourly rate of $165. Should we prevail in the suit, you acknowledge
that we may seek an award of attorneys' fees and costs from the court at a higher rate reflecting
our standard hourly rates, in addition to any "multiplier" that may be awarded, to be paid by any
plaintiff or plaintiff's counsel. In the event we receive a court- ordered award of attorney's fees,
that award will be applied first to reimburse ATS for the fees and costs it has paid on your behalf
pursuant to this agreement, with our firm retaining any balance above and beyond that sum.
The firm typically incurs costs in connection with legal representation, which we will do
here in accord with ATS's billing guidelines. Such expenses may also include filing fees,
deposition costs, process servers, court reporters, and witness fees. We will customarily include
charges for these items in our regular invoices, payable upon your receipt. We normally do not
Vincent Brown, Esq.
April 9, 2015
Page 3 of 5
make a separate charge for secretarial work unless there is a situation that requires overtime staff
work.
We will provide ATS and you with statements after the end of every month for work
performed and expenses recorded on our books during the previous month. If any statement is
not paid when due, then we must reserve the right to suspend performing legal services for you
until ATS has made arrangements satisfactory to the firm for payment of any amounts due and
for future services and expenses.
Because ATS is paying the fees and costs of this representation and because its interests
in the Action are presently aligned with those of the City, we have agreed to consult with ATS
on the litigation process, including concerning tactics and strategy. While we have agreed to
consider ATS's opinion, ATS acknowledges that nothing contained herein shall interfere with
the firm's exercise of its independent, professional judgment on your behalf. In addition, we will
not be able to incur significant fees or expenses on the City's behalf without first having
consulted with ATS. We will provide ATS on a quarterly basis with a budget identifying the
anticipated significant fee and expense items for the quarter and the fees or expenses we believe
will be associated with those items.
ATS reserves the right to discontinue the payment of fees and expenses upon seven days
written notice to you if your contract with ATS for red light camera services is terminated,
expires without renewal, otherwise fails to remain effective, or is breached by you in any
material respect. ATS will pay all reasonable and necessary fees expenses we incur prior to the
expiration of the seven -day notice period. Upon such discontinuance, you may continue to
employ our firm as defense counsel in the Actions, but such employment will be at your own
expense.
The fees and costs relating to this matter are not predictable with certainty. Accordingly,
we have made no commitment to you or ATS concerning the maximum fees and costs that will
be necessary to resolve or complete this matter. Any estimate of fees and costs that we may have
discussed represents only an estimate of such fees and costs. It is also expressly understood that
payment of the firm's fees and costs is in no way contingent on the ultimate outcome of the
matter.
Third party payment. Under the Rules Regulating the Florida Bar, our firm cannot accept
compensation from a third -party (here, ATS) for representing a client (here, the City) unless (1)
there is no interference with our independence of judgment or the client - lawyer relationship, (2)
information concerning the lawyer- client relationship is kept confidential, and (3) the client gives
informed consent. We do not perceive that our receiving compensation from ATS will interfere
with our independence or the lawyer- client relationship. Both the City and ATS have a common
interest in seeing these cases defeated and securing the underlying principle that the City's
relationship with ATS is permissible under law. Accordingly, the interests of the City and ATS
appear to us to be aligned with respect to the subject of this engagement.
Vincent Brown, Esq.
April 9, 2015
Page 4 of 5
Further, we do not see any difficulty complying with our obligation to maintain client
confidences with respect to this matter. Many of the facts and documents at issue in the cases
are matters of public record, making the disclosure of confidential information with respect to
those facts and documents unlikely. With respect to those matters that are confidential, we
believe that they are adequately protected because parties who share a common legal interest
may exchange attorney - client communications and work product without waiving that
confidentiality where the communications are on matters related to the common interest. We
intend to enter into a written common interest /joint defense agreement with ATS's counsel in the
near future.
Our duty of representation is first and foremost to the City; and we will advance such
positions, arguments and defenses as we, in consultation with you, determine to be in the best
interests of the City. Should there come a time when we, in the exercise of our independent
professional judgment, determine that the City's interests in the Action are not aligned with those
of ATS, we will immediately notify you, as well as ATS, to resolve any dispute and make a
determination as to whether the current arrangement for legal representation may be continued.
However, at all times, we will comply with our ethical obligation to safeguard the interests of
you, our client. Should ATS and the City be unable to reach a satisfactory resolution of any
dispute, the City will retain the right, if it so desires, to continue to employ our firm in
connection with the Actions, though such representation may be at the City's sole expense.
If you have any questions about any of the foregoing, please do not hesitate to contact me
to discuss them. By signing this letter, you agree that you have been fully informed about our
relationship with ATS and its potential implications for this engagement and that you consent to
our representation in light of that knowledge.
Termination of Representation. You may terminate this representation at any time by
notifying us. Your termination of our services will not affect ATS's responsibility for payment
of outstanding statements and accrued fees and expenses incurred before termination or incurred
thereafter in connection with an orderly transition of the matter. If such termination occurs, your
papers and property will be returned to you promptly upon receipt of payment for outstanding
fees and costs. Our own files pertaining to the matter will be retained. These firm files include,
for example, firm administrative records, time and expense reports, personnel and staffing
materials, credit and accounting records, and internal lawyers' work product such as drafts,
notes, internal memoranda, and legal and factual research, including investigative reports
prepared by or for the internal use of lawyers.
We may withdraw from representation if you fail to fulfill your obligations under this
agreement, or ATS fails to pay our fees and expenses, or as permitted or required under any
applicable standards of professional conduct or rules of court, or upon our reasonable notice to
you.
Vincent Brown, Esq.
April 9, 2015
Page 5 of 5
Please review this letter carefully and, if it meets with your approval, please sign the
enclosed copy of this letter and return it to me so that we may begin work. Again, we appreciate
this opportunity to be of service. Please do not hesitate to call me if you have any questions.
Very truly yours,
WEISS SEROTA HELFMAN COLE &BIERMAN,
P.L.
By:
Edward G. Guedes
Enclosures
cc: George J. Hittner, Esq.
General Counsel
American Traffic Solutions, Inc.
1330 West Southern Avenue, Suite 101
Tempe, Arizona 85282
Accepted and agreed to this day of
, 2015.
CITY OF OPA LOCKA, FLORIDA
Accepted and agreed to this day of
, 2015.
AMERICAN TRAFFIC SOLUTIONS, INC.
By:
George J. Hittner, General Counsel