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HomeMy WebLinkAboutResolution - 4497 - Special Counsel Agreement - Martin W Diesm Attorney PC - Surface Treatment ACM - 05_19_1994Resolution No. 4497 May 19, 1994 Item #34 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock BE and is hereby authorized and directed to execute for and on behalf of the City of Lubbock a Special Counsel Agreement by and between the City of Lubbock and Martin W. Dies, Attorney P.C., attached hereto, which shall be spread upon the minutes of the Council and as spread upon the minutes of this Council shall constitute and be a part of this Resolution as if fully copied herein in detail. Passed by the City Council this ATTEST: Betty 4. Johnson, CRy Secretary APPROVED AS TO FORM: 4" C � "4 - o C. Ross, Jr., Attorney JCR:da/ccdocs/A-M-DIES.res May 4, 1994 xesotution No. 4497 May 19, 1994 Item #34 This Special Counsel Aw Z.e,ement m and entered into on this the day of , 199�, by an et ee he City of Lubbock ("the City"), a governmental subdivision of the State of Texas, acting by and through its City Council ("City Council"), and Martin W. Dies, Attorney P.C. ("Special Counsel"), and whose address is 1009 West Green, Orange, Texas 77630-5697. A. WITNESSETH: Whereas, the City owns and, or operates public buildings which may contain friable asbestos -containing acoustical, decorative or fireproofing plaster materials (hereinafter "surface treatment ACM") for which it has or will incur costs related to the management and, or abatement of these materials due to the hazardous nature of asbestos; WHEREAS, the City Council is desirous of recovering monetary damages from the responsible manufacturer(s) of said materials which have damaged the buildings by reason of their presence therein; and WHEREAS, the City Council has reviewed the facts in connection with the presence of the surface treatment ACM in its building(s) and has determined to employ the legal services of Special Counsel as its Attorney to represent the City in the prosecution of this claim or claims against any person, firm, corporation, or entity, arising out of the purchase, installation, or presence of surface treatment ACM used in the construction of the City's building(s) which Special Counsel determines to be appropriate. NOW, THEREFORE, the City Council authorizes Special Counsel to bring suit on such claim or claims, if necessary, and to prosecute the same to final judgment or conclusion or to compromise and settle the claims as Special Counsel deems best or advisable, but such settlement or compromise shall be made only upon approval of the City Council or its designated representative. IN CONSIDERATION THEREOF, the City Council recognizes that there will be expenses involved in the preparation and prosecution of its claim(s) and, or lawsuit, and the City Council agrees that it will pay the reasonable and necessary expenses of the litigation relating to the prosecution of the City's claim(s) including but not necessarily limited to, testing, surveys, inspections, expert witness fees, travel, copying, related discovery expenses, and such other and reasonable and necessary Attorney's out-of-pocket expenses directly associated with Special Counsel prosecution of the City's claims. Special Counsel agrees to advance the City's expenses of the litigation and the City Council agrees that all such expenses thereby incurred by Special Counsel shall be reimbursed to Special Counsel from the proceeds of the City's share of any settlement, compromise, or judgment in connection with the City's claim(s) hereof. -2- Other Expenses not solely attributable to the direct prosecution of the City's claims but attributable to or of direct benefit to the overall conduct of all similar cases on behalf of Texas governmental and, or political subdivisions being prosecuted by Special Counsel will also be reimbursed to Special Counsel by the City on a pro-rata basis with all other participating governmental and, or political subdivisions from the proceeds of the City's share of any settlement, compromise or judgment. In consideration for the services to be rendered by the Special Counsel on behalf of the City, the City Council agrees to give and allow Special Counsel as fees in the prosecution of its claim(s) the sum of thirty-five percent (35%) of the gross amount recovered or received on its claim(s) whether by compromise, settlement or judgment. The City Council hereby grants, assigns, transfer and conveys to said Special Counsel as fees herein a thirty-five percent (35%) undivided interest in the City's gross claim(s). The Special Counsel will not receive an hourly rate. If no recovery is obtained, the Special Counsel will receive no fees. The Special Counsel may associate other counsel to assist in the case but no additional compensation will be allowed other than the contingent fee herein granted. The City Council recognizes that claims may be pursued in a suit with other governmental bodies and that any settlement or judgment may be a lump -3- sum payment to all governmental subdivisions in the litigation. The City Council agrees that the prosecution of its claim is for the removal of asbestos - containing surface materials and that payment of any lump sum recovery will, of necessity, be based upon the presence of asbestos whose manufacturer is identifiable. In the event there is a lump sum payment to more than one governmental entity as a result of a judgment or settlement, the City Council recognizes and agrees that a formula will be developed and applied to distribute the payment which will accommodate past and future removal costs on an equitable basis. The Special Counsel may withdraw from the case at any time the Special Counsel determines that the prospect of recovery or the cost of the litigation does not justify continued litigation. In the event the Special Counsel makes such determination, the Special Counsel will openly and fully discuss the facts with the City Council before withdrawal. In the event of such withdrawal by the Special Counsel, the contingent fee as set forth in this Agreement shall be of no further force and effect. The City Council agrees to cooperate fully, and pledges the support of its agents and employees, in the preparation and trial of this case, and to comply with all reasonable requests made by the Special Counsel in conjunction with the preparation and presentation of the case. -4- • It is fully understood that no guarantees have been made with regard to the amount of recovery, if any, which may be had in this case, or in connection with the City's claim(s), and no representations have been made as to what amounts, if any, the City may be entitled to recover or may actually recover in this case. I& qA� Dated this I,:\— day of/" t \, , '\,,,199�! ATTEST: aot,- Secretary APPROVED AS TO FORM: By: U - Am C. Ross, Jr. City Attorney 9346.CON 0 MARTIN W. DIES, ATTORNEY P.C. By:— 214L-��, MARTIN W. DIES, President -5- May 19, 1994 Item #34 This Special Counsel kan ent m and entered into on this the �}'^ day of 199�y 1by etee he City of Lubbock ("the City"), a governmental subdivision of the State of Texas, acting by and through its City Council ("City Council"), and Martin W. Dies, Attorney P.C. ("Special Counsel"), and whose address is 1009 West Green, Orange, Texas 77630-5697. A. WITNESSETH: Whereas, the City owns and, or operates public buildings which may contain friable asbestos -containing acoustical, decorative or fireproofing plaster materials (hereinafter "surface treatment ACM") for which it has or will incur costs related to the management and, or abatement of these materials due to the hazardous nature of asbestos; WHEREAS, the City Council is desirous of recovering monetary damages from the responsible manufacturer(s) of said materials which have damaged the buildings by reason of their presence therein; and WHEREAS, the City Council has reviewed the facts in connection with the presence of the surface treatment ACM in its building(s) and has determined to employ the legal services of Special Counsel as its Attorney to represent the City in the prosecution of this claim or claims against any person, firm, corporation, or entity, arising out of the purchase, installation, or presence of surface treatment ACM used in the construction of the City's building(s) which Special Counsel determines to be appropriate. NOW, THEREFORE, the City Council authorizes Special Counsel to bring suit on such claim or claims, if necessary, and to prosecute the same to final judgment or conclusion or to compromise and settle the claims as Special Counsel deems best or advisable, but such settlement or compromise shall be made only upon approval of the City Council or its designated representative. IN CONSIDERATION THEREOF, the City Council recognizes that there will be expenses involved in the preparation and prosecution of its claim(s) and, or lawsuit, and the City Council agrees that it will pay the reasonable and necessary expenses of the litigation relating to the prosecution of the City's claim(s) including but not necessarily limited to, testing, surveys, inspections, expert witness fees, travel, copying, related discovery expenses, and such other and reasonable and necessary Attorney's out-of-pocket expenses directly associated with Special Counsel prosecution of the City's claims. Special Counsel agrees to advance the City's expenses of the litigation and the City Council agrees that all such expenses thereby incurred by Special Counsel shall be reimbursed to Special Counsel from the proceeds of the City's share of any settlement, compromise, or judgment in connection with the City's claim(s) hereof. -2- Other Expenses not solely attributable to the direct prosecution of the City's claims but attributable to or of direct benefit to the overall conduct of all similar cases on behalf of Texas governmental and, or political subdivisions being prosecuted by Special Counsel will also be reimbursed to Special Counsel by the City on a pro-rata basis with all other participating governmental and, or political subdivisions from the proceeds of the City's share of any settlement, compromise or judgment. In consideration for the services to be rendered by the Special Counsel on behalf of the City, the City Council agrees to give and allow Special Counsel as fees in the prosecution of its claim(s) the sum of thirty-five percent (35%) of the gross amount recovered or received on its claim(s) whether by compromise, settlement or judgment. The City Council hereby grants, assigns, transfer and conveys to said Special Counsel as fees herein a thirty-five percent (35%) undivided interest in the City's gross claim(s). The Special Counsel will not receive an hourly rate. If no recovery is obtained, the Special Counsel will receive no fees. The Special Counsel may associate other counsel to assist in the case but no additional compensation will be allowed other than the contingent fee herein granted. The City Council recognizes that claims may be pursued in a suit with other governmental bodies and that any settlement or judgment may be a lump -3- sum payment to all governmental subdivisions in the litigation. The City Council agrees that the prosecution of its claim is for the removal of asbestos - containing surface materials and that payment of any lump sum recovery will, of necessity, be based upon the presence of asbestos whose manufacturer is identifiable. In the event there is a lump sum payment to more than one governmental entity as a result of a judgment or settlement, the City Council recognizes and agrees that a formula will be developed and applied to distribute the payment which will accommodate past and future removal costs on an equitable basis. The Special Counsel may withdraw from the case at any time the Special Counsel determines that the prospect of recovery or the cost of the litigation does not justify continued litigation. In the event the Special Counsel makes such determination, the Special Counsel will openly and fully discuss the facts with the City Council before withdrawal. In the event of such withdrawal by the Special Counsel, the contingent fee as set forth in this Agreement shall be of no further force and effect. The City Council agrees to cooperate fully, and pledges the support of its agents and employees, in the preparation and trial of this case, and to comply with all reasonable requests made by the Special Counsel in conjunction with the preparation and presentation of the case. -4- It is fully understood that no guarantees have been made with regard to the amount of recovery, if any, which may be had in this case, or in connection with the City's claim(s), and no representations have been made as to what amounts, if any, the City may be entitled to recover or may actually recover in this case. I& Dated this lt_ day of ATTEST: Secretary APPROVED AS TO FORM: ByC- . V - — C. Ross, Jr. City Attorney 9346.CON By:. 22ZL:Y.,�,- MARTIN W. DIES, President -5-