HomeMy WebLinkAboutDocumentation_Regular_Tab 19_10/12/2023Agenda Item #19.
Regular Council
STAFF MEMO
Meeting: Regular Council - Oct 12 2023
Staff Contact: Keith Davis, Village Attorney Department: Legal
TITLE
Consider Adoption of Engagement Letter for Legal Representation in PFAS Litigation
SUMMARY:
Engagement letter for legal representation of the Village in nationwide PFAS litigation. This is a
contingency fee arrangement meaning that the Village will not incur "out of pocket" expenses for
attorney's fees or litigation costs. Rather, upon reaching a successful settlement of trial verdict, the law
firm representing the Village will keep 25% of the award, plus costs.
This document and any attachments may be reproduced upon request in an alternative format by
completing our Accessibility Feedback Form, sending an e-mail to the Village Clerk or calling 561-768-
0443.
BUDGET INFORMATION:
BUDGET AMOUNT 0 AMOUNT AVAILABLE 0 EXPENDITURE AMOUNT: 0
FUNDING SOURCES: n/a IS THIS A PIGGYBACK:
Yes N/A
DID YOU OBTAIN 3 QUOTES?
Yes N/A
COMMENTS/EXPLANATION ON SELECTION selection of legal counsel is exempt from all
competitive procurement requirements.
POTENTIAL MOTION / DIRECTION REQUESTED:
If the Council desires the Village to participate in the PFAS litigation, it is recommended that the
engagement letter be accepted and executed.
ATTACHMENTS:
Municipal PFAS Retainer - Tequesta FL
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Agenda Item #19.
RETAINER AGREEMENT
THIS RETAINER AGREEMENT made and entered into this ___ day of October, 2023,
by and between the Village of Tequesta, Florida, (the "Client" or "You") and Roe Frazer of
Frazer Law, PLC and Ventura Law (collectively the "Firms" or "we"), in connection with
potential litigation regarding the presence of Polyfluoroalkyl substances, including, but not
limited to, PFOA and/or PFOS, in drinking water, wastewater and soil in the property of the
Client.
1.For and in consideration of the mutual promises herein contained and other good and
valuable consideration, the parties hereby agree as follows: The Client hereby engages
the Firms to represent it in potential civil litigation in connection with legally tenable
claims to be brought against manufacturers and others regarding the presence at
unacceptable detectable limits of a certain group of chemicals known as Polyfluoroaklyl
substances, including, but not limited to, PFOA and PFOS, in drinking water, wastewater
and soil in the property of the Client (the "case" or "matter"). Subject to favorable results
in their investigation into Client’s potential claims, the Firms will file and prosecute such
lawsuit as are necessary on behalf of the Client against responsible parties that The
Firms, after consultation with and approval by the Client, deem necessary to a successful
outcome of the litigation. The Firms will submit any proposed complaint or petition to
the Client for approval before filing. If nothing is recovered, the Client will not be
indebted to the Firms for any attorney's fees or expenses the Firms might incur. If the
Firms’ investigation results in a finding that, in their opinion, does not warrant the filing
of a lawsuit, then the Firms will notify the Client of that conclusion, in which event the
Client will owe the Firms nothing and this Agreement will be terminated. All of the
lawyers and employees the Firms are representing the Client only in their capacity as
lawyers and employees of Frazer Law PLC and Ventura Law.
2.The Firms have made no promises and will make no promises or guarantees as to the
probabilities of outcomes or the amounts recoverable in connection with the Clients'
claim(s).
3.The Firms assume joint responsibility for the representation described in this Agreement.
Client approves of and consents to the participation of all the Firms in the representation.
The Client understands and agrees that the total contingency fee described in paragraph 5
(the “Contingency Fee”) will be divided equally among the Firms or in such manner as
the Firms may deem appropriate based upon the work performed by each. The Client
agrees to this division of responsibilities and fees. The Firms might propose association
with other firms or attorneys which we reasonably believe might assist in the prosecution
of this litigation. As to any other proposed associated counsel, the Client will be provided
the names of that counsel in advance of our association, and will have the right to
approve their association on its behalf. The division of fees among the Firms, or the
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Agenda Item #19.
association with additional counsel, does not change the total Contingency Fee described
in paragraph 5 owed by the Client.
4.The Firms agree to represent the Client on a contingent basis, such that any attorney's
fees and expenses shall be paid only if the Firms obtain a favorable result in this case.
The Firms will advance the costs of this litigation including filing fees, transcript costs,
notices, travel expenses, expert fees, and copy and delivery charges. While the Firms will
seek reimbursement of these charges from the court and/or the adverse parties, they
understand that reimbursement of their expenses is not guaranteed.
5.The Client agrees to pay the Firms a total Contingency Fee of twenty-five percent
(25.00%) of the total amount of money or other items of value obtained in connection
with the settlement, trial, or appeal of the claim (the “Contingency Fee”). In the event of
a settlement, the Contingency Fee shall be computed on the basis of the present value of
the settlement. The Client agrees that the Firms shall recover all costs and expenses
reasonably incurred by the Firms from the gross recovery. If there is no recovery, the
Client shall not be responsible to reimburse the Firms for any costs and expenses, or if
such costs and expenses exceed the gross recovery, the Client shall not be responsible for
such excess. Costs and expenses shall be deducted before the Contingency Fee is
calculated. These costs and expenses do not change the Contingency Fee percentage.
Furthermore, any expenses that benefit multiple clients will be spread evenly, pro rata,
among them. To the extent that attorney's fees are awarded by a Court, those fees, to the
extent collected from any adverse party, shall be credited against the Contingency Fee to
be paid if the amount awarded is less than 25% of the total amount obtained in
connection with the settlement, trial or appeal of the claim. If the amount awarded and
paid by the adverse party is greater than 25% of the total amount of money or other items
of value obtained in connection with the settlement, trial or appeal of the claim, then that
amount shall be the entire fee owed to the Firms. Under no circumstances shall the Client
share in any attorney's fees, however.
6.The Firms will not settle the Client's claim without the approval of the Client, who will
have the absolute right to accept or reject any settlement. The Firms will notify the
Client promptly of the terms of any settlement offer received by the Firms.
7.The Firms will take reasonable measures to keep confidential all information relating to
representation of the Client, unless disclosure is authorized by the Client or required by
applicable codes of professional responsibility. The Firms may, however, include your
name in a published list of our clients, with your written approval.
8.The Client will have the right at any time to terminate the Firms’ representation, with or
without cause, upon written notice to the Firms. After filing suit, the Firms, or any of
them, may withdraw as permitted under the Florida Rules of Professional Conduct. Upon
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Agenda Item #19.
termination of representation, the Firms shall take steps to the extent reasonably
practicable to protect the Client’s interests, will give reasonable notice to the Client, will
allow time for employment of other counsel, and will surrender papers and property to
which the Client is entitled. If the Firms withdraw or are discharged before any recovery
is obtained, the Client agrees to pay a reasonable fee for the services rendered. If the
parties are unable to agree on a reasonable fee for the services rendered, the Firms and
the Client agree that the fee will be determined by binding arbitration proceedings before
a neutral affiliated with the Judicial Arbitration and Mediation Services (JAMS); in any
event, the Firms and Client agree that the fee determined by arbitration shall not exceed
the Contingency Fee of 25% as defined in paragraph 5.
9.The Firms have found that the use of email is an expedient and effective method of
communicating with clients and in transmitting documents. While the Firms are mindful
of the fact that it is possible for such communications to be intercepted and read, they
agree to take all reasonable measures to preserve the confidentiality of email
communications and have concluded that there is a sufficient likelihood of confidentiality
in this means of transmission to justify its use with the Client on a regular basis. The
Client agrees that the Firms may use email to communicate with it and to transmit
documents to it from time to time.
10.This Agreement does not include any contract or agreement for any other legal
representation not herein expressly referenced. The Client understands that the Firms will
not provide any tax, accounting, or financial advice or services regarding this matter. If
additional legal services are necessary in connection with or beyond the scope of the
engagement reflected herein and the Client requests an attorney to perform such services,
separate and additional fee arrangements will be made between the Client and the Firms.
Any request for legal services unrelated to this engagement must be set forth in a separate
written agreement signed by the Client and one or more of the Firms.
11.In the event that the Firms recover any compensation for the Client, all payments
recovered will be first deposited and/or paid into the trust account of one of the members
of the Firms, or a trust account designated by them, from which account those funds will
be distributed, pursuant to an itemized accounting to the Client consistent with the terms
of the settlement or judgment minus the Contingency Fee and costs as set forth in this
Agreement. Funds may be held in the IOLTA trust account of the Firms, or any of them,
and the interest, if any, will be sent to the appropriate Bar Foundation. The Firms will
make every effort, consistent with applicable Bar Rules, to put any settlement in an
interest bearing account for the benefit of the Client.
12.Arbitration of Disputes: If a dispute arises between the Client and the Firms regarding or
connected with fees/costs due to the Firms or legal services performed by or on behalf of
the Firms in connection with the claim(s) covered by this Agreement, such dispute shall
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Agenda Item #19.
be submitted to binding arbitration as set forth in paragraph 8. The arbitration also
includes any claim against the Firms for breach of contract, negligence, and breach of
fiduciary duty or other wrongdoing. The parties agree that the governing law for such
dispute will be the law of the State of Florida, notwithstanding any conflict of law
doctrine to the contrary. The parties also agree that the exclusive and sole venue and
jurisdiction for any such action shall be Tequesta, FLand consent to personal jurisdiction
in said place.
13.The Firms acknowledge that information of Client's business practices and confidential
information gained from the Client through the representation of the Client and its agents
and representatives would create a professional conflict of interest in the representation of
others in current and future litigation of any nature whatsoever against Client. To the
maximum extent permitted by the Florida Rules of Professional Conduct, the Firms agree
that they will institute no action or suit of any nature whatsoever, at law or in equity,
against Client, Client's agents, successors and assigns, nor aid in the institution, by
referral or otherwise of any claim, demand, action or cause of action against Client,
Client's agents, successors and assigns. In addition, the Firms will require all experts and
consultants retained pursuant to this Agreement to execute an agreement containing a
provision, in a form satisfactory to Client, prohibiting them from releasing confidential
information of Client.
14.The Firms and Client agree that the Firms will not communicate with the media, issue
press releases, or make any other public comments. The Firms will keep Client apprised
of contacts from the media and to the extent practicable will consult with Client prior to
making any statement related to the Client's case. The Firms will use their best efforts to
control public statements made by any public water providers involved as plaintiffs in
PFOA/PFOS litigation. If the Firms or another plaintiff makes public statements or
comments on behalf of Client, Client may withdraw from the litigation without owing
Attorney any costs or fees, and the attorney-client relationship would be terminated at
that time. This paragraph applies only to communications that occur after the Effective
Date of this Agreement as defined in paragraph 15.
15.The effective date of this agreement will be the date when it is executed by Client. This
Agreement will, however, apply to services provided by the Firms on this matter before
its effective date.
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Agenda Item #19.
Executed on the date first above written.
CLIENTFRAZER PLC
By: ___________________________By: ____________________
VENTURA LAW
By: ____________________________
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