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HomeMy WebLinkAboutCity of Tamarac Resolution R-86-429Introduced by: clbq Temp. Reso. #4378 1 2 3 4 r. 7 8 9 10 11 12 13 14 15 16 1 18 19 20 21 22 23 24 25 :6 27 28 29 .31 32 33 34 35 CITY OF TAMARAC, FLORIDA RESOLUTION NO. R-86-- � A RESOLUTION APPROVING AND AUTHORIZING THE APPROPRIATE CITY OFFICIALS TO EXECUTE AN ATTORNEY -CLIENT AGREEMENT BETWEEN WILDMAN, HARROLD, ALLEN, DIXON & McDONNELL AND THE CITY OF TAMARAC, PERTAINING TO REPRESENTATION IN THE FIDATA TRUST COMPANY AND/OR AFFILIATES (COLLECTIVELY-BRADFORD") LITIGATION; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City Council of the City of Tamarac determines that it is in the public interest to enter into an Agreement with Wildman, Harrold, Allen, Dixon & McDonnell to represent the City's interest in the Fidata Trust Company and/or affiliates (collectively "Bradford") litigation. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF TAMARAC, FLORIDA: SECTION_1: That the City Council of the City of Tamarac hereby approves an Attorney --Client Agreement between Wildman, Harrold, Allen, Dixon & McDonnell and the City of Tamarac, pertaining to representation in the Fidata Trust Company and/or affiliates (collectively "Bradford") litigation; attached hereto and made a part hereof as Exhibit "A"; SECTION 2: That the appropriate City Officials are hereby authorized to execute said Agreement. SECTION_ 3: This Resolution shall become effective immediately upon adoption. PASSED, ADOPTED AND APPROVED this!g_2 day of; 1986. ATTEST: CAROL E. BARBUTO ASSISTANT-.-C-ITY _CLE K..._-....... I HEREBY CERTIFY that I have approved the form and correct- ness of this RESOLUTION. A. B]YANT A"LEGAFE C Y ATTORNEY BERNA D HART MAYOR MAYOR: HART __. DIST. I: C/W MASSARO .. DIST. 2: v/M STELZER - DIST. 3: C/M GOTTESMAN DIST. 4: C/M STEIN 1101301/rms �s o 10 " q L., , 11 0 ATTORNEY -CLIENT AGREEMENT ft 1. Each undersigned party (collectively "Client") hereby contracts and authorizes the partnership of Wildman, Harrold, Allen, Dixon & McDonnell ("Lead Counsel") to direct and par- tially perform, in accordance with this agreement, the prosecu- tion through trial of such legal claim, if any, as Client has against Pidata Trust Company and/or affiliates (collectively "Bradford") for loss in securities transactions between Client and ESM Government Securities, Inc., now bankrupt (the "Bank- rupt"). Lead Counsel is further contracted and authorized to assist the Bankrupt's Trustee in the prosecution through trial • of his claims against Bradford. Lead Counsel hereby undertakes to perform this contract with due professional care. 2. Client authorizes Lead Counsel to direct and par- tially perform under similar contract the prosecution of any similar claim by any entity ("Public Body") listed with Client on the attached "Schedule A;" and Client agrees to keep in con- fidence all communications with and information from Lead Counsel concerning any such claim. 3. Subject to the liability of Client set out in 11 4, 8 and 10, Lead Counsel is authorized to and shall contract or purchase on behalf of Client such goods and services as Lead Counsel judges appropriate to perform this contract, including without limitation office supplies, document reproduction, oath administration, transcription, travel, lodging, telecommunications, the services and like expenses of separate professionals as "liaison" or "local" counsel ("Liaison Counsel") for Client, and the services and like expenses of separate professionals with whom Client or another Public Body has individually contracted ("Public Body Counsel"). 4. For the prosecution of one or more claims against Bradford by Client and/or any Public Body, Client commits itself to spend upon invoice from Lead Counsel up to the amount of the "Total Commitment" set forth for Client on Schedule A, apportioned between "Lead Counsel Fees & Expenses" and "Public Body Counsel Fees & Expenses" as also set forth thereon and defined hereinbelow. Client will be invoiced monthly for fees and expenses as provided for herein. Client agrees to deposit and maintain on deposit in the escrow account of Lead Counsel an amount no less than 20% of Client's "Total Commitment" bal- ance. The beginning deposit is set forth in Column V of Sched- ule A. 5. Lead Counsel shall endeavor to partially assign to each Client's Public Body counsel the performance of the prose- cution of Client's and other Public Body claims against Bradford in such a manner that the "Public Body Counsel Fees & Expenses" ultimately generated under this contract will bear the same or a greater relation to the "Lead Counsel Fees & Expenses" as reflected on Schedule A. Lead Counsel may expend any committed "Lead Counsel Fees and Expenses" on any Public Body Counsel. -2- 0 6. invoices for activity of internal Lead Counsel pro- fessionals shall be paid by Client at the hourly monetary rates and percentages for such professionals set forth for Client on Schedule A, Columns VI - X. All other sums invoiced by Lead Counsel shall be paid by Client in the partial percentages set forth for Client on Schedule B, which is the client's weighted average percentage of claims of all parties to this agreement. Fees of Liaison Counsel included in any such invoice shall be at rates ordinarily and customarily charged by Liaison Counsel for similar services. Fees of Public Body Counsel included in any such invoice shall be at such rates as that counsel has contracted with Client or another Public Body. • 7. As such invoices are paid, (a) all expenses paid by Client for travel and lodging of internal Lead Counsel pro- fessionals and for fees and expenses of Liaison Counsel shall be credited 100% to reduce Client's Schedule A "Lead Counsel Fee & Expense" commitment;~(b) all other Lead Counsel expenses paid by Client shall be credited 65% to reduce Client's Sched- ule A "Lead Counsel Fee & Expense" commitment and 35% to reduce Client's Schedule A "Public Body Counsel Fee & Expense" commitment; (c) all expenses of Public Body Counsel incurred in performing prosecution of Public Body claims assigned by Lead Counsel and paid by Client shall be credited 100% to reduce Client's Schedule A "Public Body Fee & Expense" commitment (unless Lead Counsel has elected under 15 above to incur such • as its own expense); (d) all Client's fee payments for activity -3- of internal Lead Counsel professionals shall be credited 100% to reduce Client's Schedule A "Lead Counsel Fee & Expense" commitment; and (e) all Client's fee payments for activity of Public Body Counsel assigned by Lead Counsel shall be credited 100% to reduce Client's Schedule A "Public Body Counsel Fee & Expense" commitment (unless Lead Counsel has elected under 115 above to incur such as its own fees). Notwithstanding the foregoing, should a Public Body Counsel retained by Client fail to perform a function assigned by Lead Counsel, any unused por- tion of Client's Schedule A "Public Body Counsel Fee & Expense" commitment can be applied to compensate Lead Counsel or any other Public Body Counsel who upon request from Lead Counsel remedies such failure. 8. When credits applied under 17 above have extinguished Client's Schedule A commitment for "Public Body Counsel Fees & Expenses," Client shall have no further liability to compensate any Public Body Counsel for professional activity under this contract except upon a collection from Bradford as detailed in 110 below. When credits applied under 17 above have extinguished Client's Schedule A commitment for "Lead Counsel Fees & Expenses," Client shall have no further liability to compensate Lead Counsel for internal professional activity except upon a collection from Bradford as detailed in 19 below. After exhaustion of Client's aggregate Schedule A commitment, Client shall be obligated only to pay Lead Counsel invoices for expenses actually incurred by either Lead Counsel or a Public 0 -4- • Body Counsel at the express direction of Lead Counsel for litigation of one or more Public Body claims against Bradford through settlement or, at the latest, through but not beyond trial. 9. wholly independent of any other compensation under this agreement, Client assigns all its interest in and cove- nants to pay to Lead Counsel an amount equal to Client's Sched- ule D or E percentage share (as applicable) times the percent set forth on Schedule C of the sum, to the extent collected, of (a) every gross monetary judgment against Bradford in which client is entitled to share pursuant to Schedule E; (b) the aggregate of all gross sums distributed to Client or any other Public Body from the Bankrupt based upon any Bradford payment or asset; and (c) the U.S, monetary value, to which Client is entitled to share pursuant to Schedule D, at the time of formation of each agreement for the payment, conclusion, dis- missal or stay of any claim against Bradford, of the aggregate gross consideration transferred and/or to be transferred by Bradford in connection with such settlement agreement. 10. An additional 2-1/2% of the aggregate gross sums defined in 19 above is hereby assigned by Client to Lead Counsel, in trust, for reimbursement of any funds expended by Client or any other Public Body on the recommendation of Lead Counsel for the prosecution of any claim against Bradford under I* this agreement subsequent to any exhaustion of the expending -5- Public Body's Schedule A "Public Body Counsel Fee & Expense" . commitment. Any funds remaining in the herein -created trust after completion of all performance under this agreement shall be paid free of trust to Client in an amount equal to client's "Percentage share," as identified in Exhibits D and E attached and incorporated herein, of the remaining trust fund. Lead Counsel shall not be entitled to any participation in this fund. 11. This agreement shall commence existence when (a) it has been validly executed by Client and accepted by Lead Counsel; (b) similar agreements have been executed by the Pub- lic Bodies set forth on Schedule A and likewise accepted by Lead Counsel; and (c) separate agreements (Exhibits D and E) . for the sharing of Bradford recovery among Client and other Public Bodies have been executed. 12. Upon breach of this agreement by any party, the aggrieved party shall deliver specific written notice of such breach to the breaching party. If the breach is not cured within 14 calendar days from receipt of notice and consists of monetary default by Client in an amount not exceeding $50,000, then Lead Counsel as the aggrieved party may at its option either terminate this agreement or discontinue service for Cli- ent as the breaching party. In consideration of the fact that similar agreements are executed between Lead Counsel and other Public Bodies, Client agrees that if Lead Counsel's service to -6- another Public Body is discontinued for a similar $50,000 or smaller monetary default, Client will pay such contribution as necessary to cure that monetary default in the same proportion as client's then remaining net equity claim bears to all the non -breaching Public Bodies then existing net equity claims. If any larger monetary breach or other form of breach by Client or any breach by Lead Counsel occurs and is not cured within 14 calendar days from receipt of notice, the aggrieved party may at its option terminate this agreement. In addition, if an involuntary legal inability to actively prosecute any Public Body's claim, provided that Public Body has a Schedule A Column I percentage greater than 5%, or the Bankrupt's claim against Bradford in the Southern District of Florida should arise and • continue for more than 45 days, Lead Counsel may at its option terminate this agreement. 13. After this agreement commences existence, if Lead Counsel executes any further similar agreement with an entity not listed on Schedule A, Lead Counsel shall require that such further agreement provide for sufficient contribution by the "client" therein to re --apportion the total monetary burden of the total similar agreements among all "client" entities according to their net equity claims against Bankrupt. • 14. Neither (a) Client's response to discovery propounded 0 by Bradford to Client, to third parties related to Client, nor to other third parties on subjects substantially unique to Cli- ent; nor (b) Client's consideration of events or conditions substantially unique to Client; nor (c) constraints on Client's prosecution of its claim against Bradford under the law of Cli- ent's situs state, county, or municipality; nor (d) considera- tion by Client or between Client and its Public Body counsel of communications from Lead Counsel shall be considered the prose- cution of Client's claim against Bradford within the meaning and scope of this agreement. Any expenditures by Client in connection with matters reasonably within the scope of sub-$ (a), (b), (c), or (d) herein shall not impact in any way upon any provision of this agreement. • d r ry or - (name of entity) By: (name of signatory)6j5RIV4RD H19-R7- ACCEPTED: WILDMAN, HARROLD, ALLEN, DIXON & McDONNELL By: (partner) -8- (title of signatory)/41f}Yo/r C • A Y o r q R rn tid Fi O O x m A to O. H pxo i K H N Y W Y P N !r N Y 9tl •� ►J N W A O b � �G 41 m w C N Ol W N b ��•••1l A ~ H N N O • p Y U b U Y H Itl A N x FF]] X M X II 40 M X M li x 11 M M M M iD M GoO V Y W J Y P N O Vt 01 N 1�0 N H w W J N Ce p O H 6 O O O J b * p p [.1 C1 N ♦ D7 O O 0s 10 {-' O O 0 10 W 9h O p O P U N Eby' Y Y W W Vt D1 O b 01 a J W Eo J 10 b N H U N A b W 01 b D1 A O w P. W w p l+l C1 H p O O A W Y y p N Y p p b b N y 0 Y W J A • Y ca O p N 1•+ O Ca qllyy M N M 4A 4A A 01 W M W Ol b IM+ N O w V w `'l P b 'XXry11 M y Ili W N 02 O Y N J til FFFF[iiii+ td A M p N r 01 +! N w m tA$Z$N O O w p 1O W w .1 D1 N P N N O o w W ul M M M M M M M M 4A N w W Y p W h+ 1•+ J N Y J D) O p W A b +1 tJ P 4l P Q p O 01 P O W w 41 to GI 41 %D w O p 01 w W N 0) b N H H M 4A M M aA 40 M an q FM+ ro y ro M+ P P b p N O7 A 41 N M g q y p J N ut y W m t P to 0 b Q O O i1 7. J w D1 T P yl M M .0 M N M tll W (D Y O Y P1 m W O J F+ O b1 A U P W O N M M M M M iD N iP f V1 J 60 H Y N ♦+ 41 IV-1 h+ !J w a (11 O N r D1 lP� P v N N Q e0mgq P b O P U W M M {/ M M N M w M N N w aS© Y N N VI U a O W w q x p 0 0, 1.1 b D] a N F OV p 1• 10 w J a ut p M N M M 4A M N M 4fl W P Y N A J W b W N 4 01 D1 P N 01 p 1•+ W J O n Y SCHEDULE S Toledo 16.9711 Washington Counties 16.5992 Clark 14.0579 Pompano 12.6309 Memphis 10.3121 Tamarac 9.7175 Harrisburg 7.7024 Dauphin 6.1501 Allentown 5.8588 0 • • SCHEDULE C r� u LEAD COUNSEL CONTINGENCY FEE SCHEDULE up to $100000.00 10% between $10,000.00 and $15,000.00 6% over $15,000.00 3% •