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HomeMy WebLinkAbout2581 Agreement between COS & DSK Law for Legal ServicesAGREEMENT BETWEEN THE CITY OF SANFORD, FLORIDA, AND DSK LAW FOR LEGAL SERVICES !/l Y g Y THIS AGREEMENT is made and entered into thisos'� da of August, 2024, b and between THE CITY OF SANFORD, FLORIDA, ("the CITY") whose business address is 300 North Park Avenue, Sanford, Florida 32771 , and the law firm, deBEAUBIEN, SIMMONS, KNIGHT, MANTZAR.IS & NEAL, LLP ("DSK LAW"), a law firm authorized to do business in the State of Florida, whose address is 332 North Magnolia Avenue, Orlando, Florida 32801. WITNESSETH: WHEREAS, DSK and the CITY intend to enter into this Agreement for services to be delivered by DSK LAW to the CITY related to the CITY's circumstances regarding contamination relating to 1,4 Dioxane, including any related contaminants (the "Legal Matter"); and WHEREAS, the CITY has determined that this service will serve an important public purpose inuring to the benefit of the citizens and customers of the CITY, and the CITY has authorized funding for such a purpose; and WHEREAS, the CITY has appropriated funds to assist in furtherance of the a above stated purposes; NOW, THEREFORE, in consideration of the promises and mutual covenants stated and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, DSK LAW and the CITY agree as follows: 1. DSK LAW's responsibility under this Agreement is to provide legal services to the -CITY regarding the Legal -Matter: 2. DSK LAW will commence services upon the execution of this Agreement. 1 3. The CITY shall pay DSK LAW significantly reduced hourly rates in the amounts of $175.00 per hour for all partner attorneys' time and all associate attorneys' time. The CITY shall also pay $100.00 per hour for DSK LAW paralegal time. 4. In addition to the hourly rates set forth in Section 3 above and subject to the other provisions of this Agreement, the CITY agrees that it shall pay DSK LAW as fees the greater of: (a) 20% of a number that is computed by taking the total of any and all recoveries, awards, settlements, the value of any remediation obligation imposed on or agreed to by any potentially responsible parties, attorneys' fees, costs, or judgments obtained regarding the Legal Matter (a "Recovery" or "Recoveries"") and subtracting from such total Recoveries the reduced hourly fees actually paid to DSK LAW pursuant to paragraph 3 above 2; and (b) such amount as is awarded by a court or other tribunal or allocated as fees in any Recovery or settlement (for example, but without limitation, based upon the hours worked at the DSK LAW's reasonable hourly rates, as increased due to risks taken by DSK LAW and working at such reduced hourly rate). While such reduced hourly fees are a credit as against the total Recoveries in accordance with the formula provided in Paragraph 4(a) above, any amounts paid to DSK LAW as reduced hourly fees are not on a contingency basis, and as such shall not under any circumstances be subject to reduction, diminution, return, or setoff. In the event of any post judgment motions or any appeal(s), or any ancillary administrative proceedings, the percentage pursuant to Paragraph 4(a) shall remain at 20% and shall not increase. Further, ' The use of the singular and the plural is to take into consideration that recoveries may be in more than one way, e.g., a Recovery may be obtaining an agreement by potentially responsible parties to remediate, but there may be additional recoveries as to maintenance and operation of any particular facility for remediation. z The purpose of this formula is to give credit to the CITY for all reduced hourly fees paid by it, dollar for dollar, so that the CITY gets paid back its reduced fees paid. As such, DSK LAW's contingency fee is only on the remaining amounts of the Recovery(s). K if any Recovery is paid over a period of time (e.g., in the event that a potentially responsible party is obligated to do, or pay for, any remediation over a period of time), the payments to DSK LAW as regards that portion of such Recovery shall likewise by paid over a like period of time. If the court or any tribunal awards the CITY reasonable attorneys' fees and costs as described in Paragraph 4(b) above, the CITY shall use the following amounts as minimum agreed upon and acceptable rates for fees, which the parties find to be commonly awardable in cases such as the anticipated litigation: $750.00 per hour for David H. Simmons, Esq., and $500.00 per hour for all other partners' attorneys' fees, $300.00 per hour for all associate attorneys' fees, and $125.00 per hour for paralegal time; any such award or Recovery of fees, shall, to the extent actually paid to DSK LAW, serve as a credit against the amount of fees owed by the CITY pursuant to this Agreement. The total amount of fees recovered, however, shall be included in and increase the total Recoveries as described in Paragraph 4(a). Any amounts awarded by a court or tribunal may be increased by the court or tribunal based on any and all factors permitted pursuant to Florida law, including the risks taken by DSK LAW in the representation of the CITY at the reduced hourly rates. 5. DSK LAW will bill the CITY, and the CITY shall pay monthly, the reduced fees in accordance with the schedule set forth in Paragraph 3 above. In all events, DSK LAW shall be entitled to at least its reduced hourly fees, whether during this representation, upon conclusion of its representation, upon any resolution of, or any recovery regarding this matter, which reduced hourly fees are not subject to setoff, reduction, or return. 6. DSK LAW will also bill the CITY, and the CITY shall also pay_, monthly for all costs and expenses, which include, but are not limited to, the following: filing fees, court costs, computerized research charges, mileage (current rate of 67 cents per mile), expert -witness fees, court 3 reporter fees, costs of transcripts or daily appearances of court reporters, and costs related to firms that create summaries, presentations, demonstrative evidence, and the like. Such costs and expenses are separate from and not included in the hourly rate for attorneys' and paralegal/legal assistants' fees. 7. An invoice will be forwarded to the CITY each month that will describe the legal services rendered regarding this matter and the total reduced fees and costs charged. The invoices will also include an itemized listing of the costs and charges to be paid by the CITY. All invoices for fees and costs are due and payable within thirty (30) days of the CITY's receipt. 8. In the event that DSK LAW perceives any conflict of interest whatsoever, if the CITY fails to pay fees and/or costs in a timely manner, if the CITY fails to abide by the legal advice DSK LAW gives or if the CITY fails to cooperate with DSK LAW, DSK LAW shall have the right to immediately withdraw from representation of the CITY. In the event of any litigation arising out of this Agreement, the prevailing party is entitled to reasonable attorneys' fees and costs, both at trial and on appeal. The venue for any such action shall be exclusively in the Circuit Court in and for Seminole County, Florida. 10. If the circumstances occur where, upon the written consent and agreement of the CITY, there are two or more clients represented by DSK LAW in this matter, each such client shall acknowledge and agree that they waive any and all conflicts that may exist between their interests to the extent of DSK LAW's representation in this matter. 11. Unless DSK LAW hears from the CITY otherwise, all notice and other information regarding this matter will be sent to 300 North Park Avenue, Sanford, Florida 32771, c/o Norton N. Bonaparte, Jr., ICMA-CM, with a copyto and all invoices being provided to Lonnie N. Groot, Assistant City Attorney, Stenstrom, Mcintosh, Colbert & Whigham, P.A., 300 International Parkway, Suite 100, Lake Mary, Florida 32746 . If at any time the CITY would like to change the rd address to which DSK LAW should send notices and information, the CITY shall advise DSK LAW in writing as soon as possible. 12. With respect to document retention, in most cases, when DSK LAW's engagement on any matter is completed, DSK LAW closes its active files, returns original documents obtained from the client to the client and stores copies of documents for three (3) years or such longer time as required by applicable law, after which, unless different arrangements are made, DSK LAW shall have the right to destroy such closed files. 13. By signing this Agreement, the CITY agrees and acknowledges that it is responsible for any and all taxes, if any, including federal, state, and local income taxes, Medicare taxes, and/or Social Security taxes related to any Recovery in this matter, arising out of it, and incurred either in the past or future. The CITY agrees and acknowledges that DSK LAW, and its attorneys, have not rendered, and will not render, any tax advice regarding this matter or otherwise, including particularly any taxation of any Recoveries. The CITY should have the tax implications of this matter explained to it by its own tax professional prior to signing this Agreement if it has any questions or need any advice regarding any tax issues. 14. The CITY should preserve all evidence related and even potentially related to this matter. This is to preserve the greatest possible amount of evidence related to the claim(s). The CITY shall preserve all communications with adverse parties, witnesses, and other persons and entities; agreements; understandings; photographs; notices; reports; and any other documents relating to this matter. This request includes but is not limited to letters, emails, text messages, voice messages, or other forms of communication including any and all electronically stored information. Electronically stored information (ESI) shall be afforded the broadest possible definition and includes, but is not limited to, potentially relevant information electronically, magnetically or optically stored as: digital 5 communications (e.g., e-mail, voice mail, instant messaging); cell phone text messages and cell phone photographs; word -processed documents; spreadsheets and tables; accounting application data; image and facsimile files; sound recordings; video and animation; contact and relationship management data; calendar and diary application data; online access data; presentations; network access and server activity logs; project management application data; computer aided design/drawing files; back-up and archival files; and social networking sites. 15. DSK LAW has made no representations to the CITY, and the CITY has not relied on any representations that are not contained in this Agreement. The CITY has made no representations to DSK LAW, and DSK LAW has not relied on any representations that are not contained in this Agreement. This Agreement is the entire agreement between the CITY and DSK LAW and shall not be modified or amended except in a writing signed by both parties. Attest: Bann � � IMC►+�� Traci Houchin, MMC, FCRM City Clerk Approved as to form and legal DSK LAW: deBEAUBIEN, SIMMONS MANTZS AND NEAL, Ll By: ` Davi H. S' ns, ar Date: August i-�, 2024 CITY OF SANFORD .� YA Mayor 1 h Date August 26, 2024 1 7 iafrr7. Colbeft —vW- 1r ,1 ity Attorney 0' A%�/� r [: rr,F ORp CITY OF &kNFORDFLORIDA CITY COMMISSION MEMORANDUM 24.235 AUGUST 26, 2024 AGENDA WS X RM X LaS�Jr' Itemo_ ,t nat -� To: Honorable Mayor and Members of the City Commission PREPARED BY: Lonnie N. Groot, Assistant City Attorney SUBMITTED BY: Norton N. Bonaparte, Jr., ICMA-CM, City Manager SUBJECT: Consideration Of Potential Litigation Involving 1,4 Dioxane Contamination And Potentially Responsible Parties STRATEGIC PRIORITIES: ❑ Unify Downtown & the Waterfront ❑ Promote the City's Distinct Culture ❑ Update Regulatory Framework ❑ Redevelop and Revitalize Disadvantaged Communities SYNOPSIS: Approval of an engagement for legal services to move forward with potential litigation involving 1,4 dioxane contamination and potentially responsible parties. FISCALISTAFFING STATEMENT: The City is and has been expending significant sums relating to operational and other costs arising from 1,4 dioxane contamination deriving from a source on Rinehart Road, which has been well recognized and is becoming more recognized as the contamination migrates. The City has been pursuing funding from the Florida Department of Environmental Protection (FDEP), but that funding opportunity only relates to the construction of facilities needed to address the 1,4 dioxane contamination issue. There have been, and will be, ongoing operational costs that must be absorbed by the City caused by the current, and migrating, 1,4 dioxane contamination. There are parties that are responsible for that contamination. At present, the public is bearing the costs that were caused by those parties' wrongful actions. Litigation has the potential of requiring those responsible parties to bear the costs of their wrongful, environmentally deleterious and harmful actions. BACKGROUND: The background provided in this City Commission agenda memorandum will not explain the 1,4 dioxane issue in depth as the City Commission has been briefed as to that matter in great detail in the past on several occasions. Also, the City Commission is familiar with the numerous articles published by The Orlando Sentinel relative to the matter and impacts on the water supplies of the City's water utility system and other Seminole County water utilities. In prior agenda items, the issues involving 1,4 dioxane contamination relative to the City's ongoing provision of high quality potable water to its citizens and customers have been discussed. Funding from the FDEP to assist the City has been one of the matters that has been brought before the City Commission. The City has engaged special legal counsel for water resources issues, Jake Varn, who been providing expert legal services to assist the City in its water system permitting, interacting with the FDEP on an array of matters and has sought funding from the FDEP for the City. Mr. Varn has greatly collaborated with City staff and in now collaborating with the City's lobbyist, Oscar Anderson. The time has come, however, to seek damages, costs, and other potential relief from those who caused the 1,4 dioxane contamination in the first instance. The law firm of de Beaubien, Simmons, Knight, Mantzaris & Neal, LLP (known as "DSK Law," which is a statewide law firm with a local office in Orlando) is well -skilled to assert the legal rights of the City and pursue the legal remedies available to the City including, but not limited to, monetary damages. The lead attorney for DSK Law in representing the City would be David H. Simmons, who is one of the founding partners of DSK Law and who practices out of the Orlando office. As DSK Law's financial managing partner, Mr. Simmons is responsible for the DSK Law's overall practice, management and day-to-day operations. He graduated with highest distinction from Tennessee Technological University, where he was first in his class in Mathematics and received both the R. H. Moorman Scholarship and the Mathematics Award. At Vanderbilt University School of Law, he was the recipient of the William B. Marr Scholarship. He also served as an editor of the Vanderbilt Journal of Transnational Law and as an editor of The Vanderbilt Moot Court Board. He graduated from the Vanderbilt University Law School in 1977. He is board certified by The Florida Bar both as a Civil Trial Lawyer and Business Litigation Attorney and is also certified by the National Board of Trial Advocacy in Civil Trial. He holds the highest ranking an individual attorney can receive (AV), as designated by the Martindale -Hubbell Law Directory. Mr. Simmons' litigation practice includes trying cases and handling complex business, corporate, environmental, eminent domain and real estate disputes. He was elected to the Florida House of Representatives, representing portions of Seminole and Orange Counties until 2008. Thereafter, in 2010, he was elected to the Florida Senate, where he served for 10 years. He has been admitted to practice in all Florida State Courts and various Federal Courts up through the United States Supreme Court. LEGAL REVIEW: The Assistant City Attorney and Mr. Varn support the movement forward in authorizing potential litigation to address the 1,4 dioxane contamination issues and the multiplicity of damages incurred by the City. Legal services are exempt from competitive procurement processes. It is clear, however, that DSK Law is a highly qualified law firm and that Mr. Simmons is a preeminent and skilled attorney to lead the effort on behalf of the City. The Assistant City Attorney has no legal objection to the proposal submitted by Mr. Simmons of DSK Law. He and Mr. Varn have reviewed the proposal and have discussed the matter with Mr. Simmons and -his partner, Daniel J—O'Malley, and -believe that the engagement witli the law firm in consistent with controlling legal principles. RECOMMENDATION: City staff recommends that the City Commission authorize the potential litigation involving 1,4 dioxane contamination and potentially responsible parties and authorize and engage DSK Law to pursue the rights of the City and the legal remedies available to the City in accordance with the controlling provisions of law. SUGGESTED MOTION: "I move to approve the agreement to engage DSK Law, as proposed." Attachment: Proposed engagement from Mr. Simmons of DSK Law entitled "Agreement Between The City Of Sanford, Florida, And DSK Law For Legal Services".