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HomeMy Public PortalAbout16-9165 Authorizing the City Manager to Execute and Agreement to retain Genovese, Joblove & Battista P.A. Sponsored by: City Manager RESOLUTION NO. 16-9165 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF OPA-LOCKA, FLORIDA, AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT (EXHIBIT "A") TO RETAIN GENOVESE, JOBLOVE & BATTISTA, P.A., A FINANCIAL RECOVERY LAW FIRM, TO ASSIST THE CITY WITH ITS FINANCIAL RECOVERY; PROVIDING FOR INCORPORATION OF RECITALS; PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, The City of Opa-locka is experiencing a financial challenge and is in need of assistance with implementing an effective recovery plan; and WHEREAS, Genovese, Joblove and Battista, P.A. has significant experience in the area of financial recovery; and WHEREAS, The City finds that it is in its best interest to retain Genovese, Joblove and Battista, P.A., to assist the City with its financial recovery. 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 authorizes the City Manager to execute an Agreement (Exhibit "A") with Genovese, Joblove and Battista, P.A., to assist the City with its financial recovery. Section 3. This Resolution shall take effect immediately upon adoption. PASSED AND ADOPTED this 9th day of March, 2016. 1 Resolution No. 16-9165 A. ■ 1 ra L. Ta, or Mayor Attest to: Approved as to form and legal sufficiency: Jo.! a Flores Vincent T. Brown, Esq. City Clerk The Brown Law Group, LLC City Attorney Moved by: COMMISSIONER PINDER Seconded by: COMMISSIONER SANTIAGO Commissioner Vote: 5-0 Commissioner Kelley: YES Commissioner Pinder: YES Commissioner Santiago: YES Vice Mayor Holmes: YES Mayor Taylor: YES GENOVESE JOBLOVE � . BATTISTA iftitAt i%AI I1A p.)'. Paul J.Battista,Esq. Telephone:305-372-2457 Email:pbattistall+4h-lavi,£c, March 9, 2016 City of Opa-Locka, Florida 780 Fisherman Street,4th Floor Opa Locka, FL 33054 Attn: Vincent T. Brown, Esq.,City Attorney Mr. David Chiverton, Interim City Manager Re: Legal Representation Dear Vincent and David: We are pleased that the City of Opa Locka (the "City") seeks to engage Genovese Joblove & Battista, P.A. (the "Firm") to represent the City in connection with attempting to resolve disputes and issues with its creditors through negotiation and/or appropriate legal process, as well as investigate and pursue, if applicable, claims and causes of action against third parties who may have damaged the City through their actions or omissions. In connection with such representation, among other things, we will also advise the City on the benefits and detriments of a chapter 9 bankruptcy filing for the City, and if the City elects to commence a chapter 9 bankruptcy, then we will prepare the necessary pleadings and file and prosecute such chapter 9 for the City in a manner consistent with and designed to achieve the City's goals. Consistent with the rules of professional responsibility which govern all attorneys, it is the Firm's practice to advise clients in writing of the terms and conditions under which we undertake a representation. First, to protect both of us and to comply with our professional obligations, this engagement is subject to clearance of any conflicts of interest with present or former clients of the Firm. We have performed a conflict check regarding those parties presently involved and, even though we represent City National Bank in one matter, have determined that no conflict exists at this time. City of Opa-Locka, Florida Vincent T. Brown, Esq., City Attorney Mr. David Chiverton, Interim City Manager March 9, 2016 Page 2 My partner, John Genovese and I will have primary responsibility for this engagement, and we will use other attorneys, legal assistants and other non-attorney personnel in our Firm in the best exercise of our professional judgment. My standard hourly rate is $625.00 and John's is $650.00. Notwithstanding such hourly rates, we understand and appreciate the financial constraints on the City and, as a result, we are prepared to agree to either of the fee proposals set forth below, which we present for the City's consideration. Once you have had a chance to review and consider such fee proposals, please let us know how you would like to proceed. We understand that our fee proposal will require approval from the City Commission and we will work with you to accomplish that goal. The Firm's engagement is also subject to and based on the provisions set forth herein and in our Standard Terms and Conditions, which are annexed to and made a part of this letter agreement. We want to assure you that we will endeavor to serve the City effectively and strive to represent the City's interests efficiently. To advance these goals, you agree to disclose fully and accurately all pertinent facts and keep us apprised of all developments in this matter. You further agree otherwise to cooperate fully with us and to be available to attend such meetings as are appropriate. During the course of our representation, we may express opinions regarding issues for which we are being engaged or various courses of action and the results that might be anticipated. Any such statement made by myself or by any partner, associate, of counsel or employee or agent 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 as a promise or guarantee. Needless to say, there can be no assurances that our efforts on your behalf will be successful. Even though our Firm requires an initial retainer from all new clients, we have agreed to waive that requirement for this representation based on the following fee proposals. Specifically, our engagement and therefore our fee proposals can be separated into two categories. First, we would work with the City to evaluate the issues between the City and its creditors and thereafter use our best effort to try to negotiate an acceptable resolution of all such creditor issues (the "Creditor Negotiation Phase"). Second, we would investigate and report to the City the existence of potential litigation claims available to the City against third parties who may have damaged the City through their acts or omissions. If the City elects to pursue such litigation claims, then we would propose to file and prosecute such claims under the City's direction to the fullest extent possible under the law (the "Litigation Phase"). In connection with the Creditor Negotiation Phase, the Litigation Phase or any work whatsoever that is contemplated under this agreement, we understand and agree that the proposed scope of our work will need to be approved in writing by the Office of the City Attorney or the City Manager prior to undertaking it. We will endeavor to work with you throughout the course of our representation to insure that you are fully informed of, and have City of Opa-Locka, Florida Vincent T. Brown, Esq., City Attorney Mr. David Chiverton, Interim City Manager March 9, 2016 Page 3 approved, the scope of our work. In addition, we agree, without charge to you, to provide you with monthly written updates of the progress of our work, any proposed next steps in connection therewith as well as any proposed additional work that we believe is necessary. Lastly, we agree to provide you with periodic and updated estimates of our fees for the work that we propose to perform, including when we seek your approval for such work as set forth above. In connection with the Creditor Negotiation Phase of our engagement, we propose a blended hourly rate for all partners working on the matter at $350.00 per hour. Associates will be billed at a blended hourly rate of$325.00 and paralegals at $175.00. We will invoice the City once per month for our fees and expenses and would seek to be paid promptly on each such invoice. Also, we agree that we will not assess the 1% late fee if payment is made within 10 days of the date of each invoice. In addition, we would propose to reconcile our fees on a quarterly basis and adjust such fees to insure that we are consistent with such blended hourly rate. Lastly, notwithstanding anything herein to the contrary, we agree to seek and obtain your prior approval before incurring any out of pocket cost or expense in excess of$200. In connection with the Litigation Phase, we would propose to investigate any such litigation claims at the same blended hourly rates as set forth above, and if the City elects to pursue any such claims after we report on such claims, then we would agree to convert our fee arrangement, at the election of the City, to either (i) a contingency fee at a reduced percentage of 20% and a reduced blended hourly rate of$225.00 per hour, or (ii) a full contingency fee of 30% of any recoveries on such litigation claims. In either case, the City would agree to fund any out of pocket costs on a monthly basis, provided that we will first seek your approval for any such costs that exceed $200. Please let us know which option you elect. In the event the City elects to proceed with a filing under Chapter 9 of the Bankruptcy Code, then we can discuss and come to an agreement on our fees and expenses in connection therewith that is satisfactory to the City and our Firm. Please review this agreement carefully, and if you have any questions concerning the foregoing terms and conditions, please do not hesitate to contact me. If this agreement is acceptable, then please let us know which fee proposal the City prefers to proceed under in connection with the Litigation Phase. In addition, please let us know what you need from us to present the terms of our proposed representation to the City Commission. City of Opa-Locka, Florida Vincent T. Brown, Esq., City Attorney Mr. David Chiverton, Interim City Manager March 9, 2016 Page 4 Thank you for allowing us to be of service. Sincerely, GENOVESE JOBLOVE & BATTISTA, P.A. By: -RO ( Z24;3teic (-3s) Paul J. Battista Attachment AGREED AND ACCEPTED TO BY: CITY OF()PA LOCKA, FLORIDA BY: Vincent T. Brown, Esq., City Attorney BY: David Chiverton, Interim City Manager City of Opa-Locka, Florida Vincent T. Brown, Esq., City Attorney Mr. David Chiverton, Interim City Manager March 9, 2016 Page 5 STANDARD TERMS AND CONDITIONS OF ENGAGEMENT 1. Costs: It is usually necessary for us to incur, as agent for our clients,expenses for items such as filing fees, travel, lodging, meals, toll telephone calls, photocopying, facsimiles ("fax"), and courier services. Many engagements require substantial amounts of costly ancillary services such as outside duplication services and computerized legal research. The client is responsible for all costs incurred on the client's behalf. In order to allocate these expenses fairly and to keep our hourly rates as low as possible for those matters which do not involve such expenditures, these items are separately itemized on our statements as "costs advanced" or "disbursements". Major out-of-pocket expenses, including outside fees and expenses (such as printing costs, filing fees, etc.), will not be advanced by us unless special arrangements are made in advance. They will be billed directly or forwarded to our client. 2. Billing: Costs and expenses will be billed monthly. Payment is due as set forth above. 3. Late Payments: We are confident that our clients make every effort to pay us promptly. Occasionally, however, a client has difficulty in making timely payment. To avoid burdening those clients who pay their statements promptly with higher fees reflecting the added costs we incur as a result of clients who are delinquent, we reserve the right to impose an interest/service charge of one percent per month for late payments. In no event will the service charge be greater than permitted by applicable law. 4. Non-Payment of Fees and Costs: Failure to pay any statement rendered within ten (10) days of your receipt thereof, due will constitute a default. In the event of a default, you agree that in our discretion we may immediately cease all legal services on your behalf or discontinue our representation (subject to our ethical obligations and any other applicable provision of law). In the unlikely event that we are required to institute legal proceedings to collect fees and costs owed by the client, the prevailing party will be entitled to reimbursement of its reasonable attorneys' fees and other costs of collection. 5. Termination: The client has the right to terminate our representation by written notice at any time with or without cause. In that case, the client is not relieved of the obligation to pay for all services rendered and costs incurred on its behalf prior to receipt of such notice in accordance with the terms hereof. We have the same right to terminate our engagement, subject to an obligation to give the client reasonable notice to arratme alternative representation. City of Opa-Locka, Florida Vincent T. Brown, Esq., City Attorney Mr. David Chiverton, Interim City Manager March 9, 2016 Page 6 6. Applicable Law: The laws of the State of Florida will govern the interpretation of this agreement, including all rules or codes of ethics which apply to the provision of services by us. Any legal action or proceeding with respect to this engagement agreement may be brought in the federal or state courts in and for Dade County, Florida, and by the execution and delivery of this engagement agreement you and the Company hereby consents to the non- exclusive personal jurisdiction of such courts, and waives any objection to such venue based on any grounds, including forum non convenient which it may have to the bringing of any action in such courts based on this engagement agreement. 7. Payment by Others: Sometimes another party to a transaction agrees to pay our client's legal fees, or a court may order our client's adversary to pay all or a part of its legal fees and costs. Ilowever, in such case our client remains primarily liable for payment of all fees and costs. Any amounts received from others will be credited to the client's account. 8. Jury Trial Waiver. The client and the Firm hereby unconditionally waive their respective rights to a jury trial of any claims or causes of action based upon or arising out of or in connection with, directly or indirectly, this agreement or the engagement of the firm contemplated herein, and any dealings between client(s) and Firm relating to the subject matter of this agreement or the Firm's fees. This waiver shall encompass any and all disputes that may be filed in any Court (including, without limitation, contract claims, tort claims, malpractice claims, breach of duty claims, and all other common law and statutory legal and equitable claims). This waiver is irrevocable, meaning that it may not be modified either orally or in writing. This waiver shall apply to any subsequent amendments, renewals, supplements or modifications to this agreement, as well as to all other matters for which the client(s) engages the Firm.. This waiver is knowingly, willingly and voluntarily made by the parties.