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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