HomeMy WebLinkAboutR-1998-011 RESOLUTION NO. 11-98
A RESOLUTION OF THE CITY OF DANIA, FLORIDA, APPOINTING
THOMAS J. ANSBRO OF BRINKLEY, McNERNEY, MORGAN, SOLOMON
& TATUM, LLP, AS CITY ATTORNEY; ACCEPTING AGREEMENT FOR
LEGAL SERVICES BETWEEN THE CITY OF DANIA AND BRINKLEY,
McNERNEY, MORGAN, SOLOMON & TATUM, LLP, FOR PROVISION OF
LEGAL SERVICES; PROVIDING THAT ALL RESOLUTIONS OR PARTS
OF RESOLUTIONS IN CONFLICT HEREWITH BE REPEALED TO THE
EXTENT OF SUCH CONFLICT; AND PROVIDING FOR AN EFFECTIVE
DATE.
WHEREAS, Dania City Attorney Frank C . Adler died on September
29, 1997, while holding the office of city attorney; and
WHEREAS, the city commission selected Timothy M. Ryan to serve
as city attorney on an interim basis; and
� WHEREAS, the City of Dania charter authorizes the city
commission to appoint a city attorney who shall serve at the
pleasure of the commission; and
WHEREAS, the City of Dania issued a request for proposals to
provide legal services as city attorney and received responses from
nine law firms on the proposal; and
WHEREAS, the city commission has carefully reviewed the
written proposals of the attorney applicants and has interviewed
the applicants for the city attorney position; and
WHEREAS, the Dania city commission at a special meeting on
it
February 2, 1998, selected Brinkley, McNerney, Morgan, Solomon &
Tatum, LLP as the top firm for the city attorney position subject
to an acceptable agreement_ for legal services; and
WHEREAS, Brinkley, McNerney, Morgan, Solomon & Tatum, LLP,
proposes to provide legal services to the City of Dania under the
terms and provisions of the agreement attached to this Resolution
and marked Exhibit "A", and firm attorney Thomas J. Ansbro shall be
primarily responsible for delivery of legal services .
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE
CITY OF DANIA, FLORIDA:
Section 1 . That Thomas J. Ansbro of the law firm of Brinkley,
McNerney, Morgan, Solomon & Tatum, LLP is hereby appointed by the
Dania city commission to serve as city attorney at the will of and
at the pleasure of the city commission.
P Y
Section 2 . That the agreement between the City of Dania and
Brinkley, McNerney, Morgan, Solomon & Tatum, LLP for the provision
of legal services to the City of Dania which is attached hereto and
marked Exhibit "A", be and the same is hereby accepted and the
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appropriate city officials are hereby authorized to execute same.
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Section 3 . That all resolutions or parts of resolutions in
conflict herewith be and the same are hereby repealed to the extent
of such conflict.
Section 4 . That this resolution shall be in force and take
effect on February 1.1, 1998 .
PASSED AND ADOPTED THIS LOTH DAY OF FEBRUARY, 1998 .
MAYOR-COMM SIONER
ATTEST:
CLERK-AUDITOR
APPROV S TO F M AND CORRECTNESS :
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CITY AT ORNEY
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AGREEMENT
THIS IS AN AGREEMENT, effective February 11, 1998, between THE CITY OF DANIA,
Dania City Hall, 100 West Dania Beach Boulevard,Dania,Florida 33004(the"City"),and the law firm
ofBRINKLEY,McNERNEY,MORGAN,SOLOMON&TATUM,LLP,200 East Las Olas Boulevard,
Suite 1800,Fort Lauderdale, Florida 33301 (the "Firm").
The City is desirous of retaining the services of the Firm for the performance of legal services
for the City and to perform legal services as the City Attorney. The Firm is willing to perform such
work for the City.
In consideration of the mutual covenants of this Agreement and other good and valuable
consideration, the adequacy and receipt of which are acknowledged, the parties agree as follows:
I. SCOPEOFSERVICES
The d:AtyiWes to retain the Firm to perform the legal services described in subparagraphs A,
B and C, bedo*:, llmexchange for such work, the City agrees to pay the Firm compensation for legal
services purs tantttma professional fee armagement consisting of three different parts: one for"general
matters", one fbrrspecial litigation and one for representation of the issuer in bond transactions, if
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applicable.
A. Genml Matters
"Gerunalimatters"include all municipal legal work ordinarily and traditionally performed by the
City Attorney„induding all consultative wodr board representation,land development issues,regulatory
and legislativm representation, legal adviser and prosecutor work(ordinance infractions and property
forfeitures), Iiim foreclosures, special amc=ent property foreclosures, real estate transaction work
(exclusive of ti& premiums), labor law and employment law representation and preparation,
representation.taimi.to and attendance at all general and special meetings of the City,where attendance
is required of Firmlbp the City.
The"genoW matters" rate for the City Attorney and partners of the Firm shall be$130.00 per
hour; the rate for Firm associates shall be $115.00 per hour. Law clerk and paralegal time shall be
charged at$40.00 per hour.
B. Special Litigation
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"Special litigation" consists of litigation which is significant in terms of monetary or personal
exposure. The parties agree that these types of claims generally consist of-
(i) construction litigation, in which the amount in controversy exceeds$250,000.00;
(ii) land use, rezoning or conditional use litigation where no defense or coverage is
acknowledged under the City's insurance program;
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(iii) constitutional or civil rights litigation where no defense or coverage is offered or
acknowledged by the City's insurance program; and,
j (iv) class action type suits or suits which could establish precedent for potential Plaintiffs in
the future where the City's exposure is greater than $100,000.00 and in which no
defense or coverage is acknowledged by the City's insurance program.
For special litigation, the Firm's professional fees shall be $175.00 per hour for Finn partners with a
minimum of ten (10) years of experience, $145.00 per hour for the City Attorney and other Finn
partners,and$140.00 per hour for associates.
C. Bond Financing
The Firm, ,if requested by City, agrees to provide issuer's counsel services in bond financing
transactions, both taxable and tax exempt. Such fees shall be negotiated on a case-by-case basis.
D. Accoui1d= Matters
Dutii%the course of representation of the City by the Firm,monthly statements shall be sent by
Firm to thse(Cltty,payable within thirty(30)days of receipt. The statements shall itemize the date of the
work,idertt fyahe attomey(s)performing such work,the type of work and the time involved to complete
same(in increments of at least one-tenth(1/10)of an hour). Statements which are outstanding for more
than thirty,(RQa)days shall accrue interest at the rate of twelve(12) percent per annum.
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The.-City shall be responsible for all third-party costs incurred by the Firm on the City's behalf,
such as faing fees, costs of service of process (e.g., summonses and subpoenas), court reporter
attendanceat and transcribing of depositions,publication fees(if any),courier fees,and other costs that
the Firm rroy be required to advance on the City's behalf in connection with representation of the City.
Statement shall also include a three percent(31/6)administrative cost on all professional fees to cover
such costs tarsall facsimile transmissions,photocopying,extraordinary postage,long-distance telephone
charges and dim like.
Reiin1bimement to Firm for travel expenses, if any travel is authorized in advance in writing
by the CitS;=mutttcomply with the requirements of City.
The:Firm agrees that statements for fees and payments for costs shall be submitted to the City
in detail sufficient for a proper preaudit and postaudit of them. Invoices shall clearly identify the
services,portion of mrvices and costs for which payment is sought.
The Firm reserves the right to withdraw from representation in the event statements are not
timely paid. If the City wishes to contest or question any statement or any portion of a statement,the
Adement or the applicable portion need not be paid until a reasonable opportunity has been given for
thceFimt and the City Manager to meet and attempt in good faith to resolve the dispute to the Firm and
Cit3's mutual satisfaction. If there is an effective impasse,the Firm must notify the City. In order to
withdraw from litigation matters as a result of non-payment,the Firm must notify the City thirty (30)
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days before a hearing on a Motion to Withdraw. For matters not in litigation, the Firm may cease
representing the City twenty (20)days after the Firm gives the City notice of the impasse.
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II. FIRM REPRESENTING CITY
The parties agree that Thomas J.Ansbro,Esq.of the Firm shall be primarily responsible for the
general supervision and overall performance of the work. The Firm shall be able to decide which lawyer
in the Firm is best suited to undertake any specific legal matter and the City acknowledges and agrees
that different lawyers in the Firm may work on different City matters. It is expected that Thomas J.
Ansbro shall personally perform the majority of the City's legal services. At the request of the City,he
will schedule times suited to the City's needs, to be available on site at City Hall to be accessible to the
City's elected officials and City employees.
The Finn and the City Commission may mutually agree that some other attorney in the Firm
shall act as City Attorney.
In theutdikely event that a conflict of interest should arise with respect to a particular matter
which is assigned to the Firm, or in the event special or specialized legal counsel services are needed
to repres uir.the City on a matter,the Firm will notify the City at once so that appropriate action can be
taken.
III. ll>IELATIONSHIP BETWEEN THE FIRM AND THE CITY
The Firm is an independent contractor pursuant to Florida law. The Firm assumes full
responsilhiiity for completion of the services specified in this Agreement. It is understood and agreed
that nothing contained in this Agreement is intended or should be construed as creating or establishing
the relatirmship of partners between the parties,or constituting the Firm as the agent or representative
of the Ci,,,for any purpose except as necessary for the performance of the subject services. The Firm
is not authorized to bind the City to any contracts or other obligations of any kind without the City's
advance acrosent. The Firm shall not expressly or impliedly represent to any party that the Firm is the
agent or ra;Iresentative of the City for any purpose except as necessary forthe performance ofthe subject
services.
Esdh:prM assumes and agrees to pay any of its losses,costs,damages,or expenses arising from
personal igj4vy,dmtband property damage attributable to the intentional tortious or negligent acts or
omissions& hits-offiucers,and employees. The Firm agrees to indemnify and hold harmless the City
and its respective officers and employees, from and against any and all actions, claims, liabilities,
assertions,orjudgmenlsof liability,and losses,costs and expenses incurred in connection with obtaining
or defending such judgments,which result from the intentional tortious acts or the negligence of the
Firm and its members,attorneys, and employees in connection with its performance of services under
this Agreement. In furtherance of this responsibility to the City, the Firm agrees to maintain
professional liability insurance and such other insurance as the Firm determines appropriate from time
to time. No third party shall be able to rely upon or enforce the provisions of this or any other paragraph
of the Agreement as there are no intended third party beneficiaries.
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IV. RELATIONSHIP TERMINABLE AT WILL
The Firm acknowledges and agrees that its services are terminable at the will and at the pleasure
of the City Commission, upon written notice by the City to the Firm's Managing Partner. The City
acknowledges that this Agreement is also terminable at the will and pleasure of the Firm,upon sixty(60)
days advance written notice to the City Mayor and City Manager by the Firm's Managing Partner. The
City shall be liable to Firm only for the payment of services rendered and costs incurred prior to the
effective date of termination. Notwithstanding the foregoing,the Agreement may be terminated under
any terns and conditions as are otherwise mutually agreeable to the parties.
V. AMENDMENT/ENTIRE AGREEMENT
Any amendment,alteration or modification to this Agreement must be signed or initialed and
approved by the City(through its City Commission)and by the Firm(through its Managing Partner).
This Agreement embodies the entire agreement of the parties and there are no other representations,
warranties,promises,agreements,conditions or understandings either oral or written between the City
and the Firm, other than those set forth in this Agreement. No subsequent alteration, amendment,
change or addition to this Agreement shall be binding upon either party unless reduced to writing,signed
by both parties and by direct reference made a part of this Agreement.
VI. MISCELLANEOUS
(A) The validity, construction and effect of this Agreement shall be governed by the laws
of the State of Florida. The City, as an agency of the State of Florida, is entitled to the benefits of
sovereign immunity, including immunities from taxation.
(B) The Firm shall not, without the advance written approval of the City,assign any right
or delegate any work or duties underthis Agreement nor may it transfer,pledge,surrender or otherwise
encumber or dispose of its interest in any portion of this Agreement.
(C) Each term and condition of this Agreement is material and any breach or default by the
Firm in the performance of each such term and condition shall be a material breach and default of the
entire Agreement for which the City shall have the right to terminate this Agreement immediately upon
notice to the Firm.
(D) Any failure to exercise or delay in exercising any right,power or remedy accruing to the
City for any breach or default of the Firm shall not impair any such right, power or remedy of the City
or be construed as a waiver by the City of any such breach or default or of any similar breach or default
thereafter occurring, nor shall any waiver of any single breach or default be construed as a waiver by
the City of any other breach or default thereafter occurring.
f,E) In the event of litigation,each party shall be responsible for its own attorneys' fees and
costs of litigation. Venue shall lie in the appropriate court of competent jurisdiction located within
Broward County,Florida.
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(F) If not specifically provided above,notice to the City shall be given by U.S. Mail to the
Mayor and City Manager of Dania, and notice to the Firm shall be given by U.S. Mail to the Firm
Managing Partner.
IN WITNESS OF THE FOREGOING,the parties to this Agreement have caused this Agreement
to be executed,effective on the date first appearing above.
THE CITY OF DANIA,
a Florida municipal corpoplien
i ATTEST- By: . r' —��T"
Marie Jab ee City Clerk Bob Mikes, Mayor
Approved by a etion APPROVA tS T ORM:
of the City C i on on
Februar 0 1998 By:
Timothy M. Ry ,
Interim City At rney
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City /Mdr ichael Smith BRINKLEY, McNERNEY,MORGAN,
SOLOMON& TATUM, LLP
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By.
Philip J. Morgan
Managing Partner
GAWPFILES1JULIE0mia\Agr cnt for Services•dean
2/27/98
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