Item O14
BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: January 28. 2009
Bulk Item: Yes XX No
Division: County Attorney
Staff Contact Person: Pedro Mercado
AGENDA ITEM WORDING:
Approval of amended budget for the legal services of Kaplan, Kirsch and Rockwell raising the not to
exceed amount from $75,000 to $77,815.
ITEM BACKGROUND:
The County retained the services of KK. & R. following problems with FAA compliance issues at
KWIA. The County originally set a not to exceed amount of $50,000 for the compliance issues. The
County raised the not to exceed amount to $75,000 and continued to use the services ofK.K. & R. for
funding eligibility issues and then, lastly, for an advisory opinion regarding federal Buy American
requirements. The County has an outstanding unpaid invoice of $2, 815.00 which the clerk cannot pay.
There have been no further services performed by K.K. & R. and there are no other invoices
outstanding. The County currently does not anticipate any further use of the services ofK.K. & R.
PREVIOUS RELEVANT ROCC ACTION:
The RaCC approved the original Letter of Engagement with Kaplan, Kirsch and Rockwell at the
January 17, 2007 regular Board meeting. The Board approved raising the not to exceed budget from
$50,000 to $75,000 at the August 15,2008 regular meeting.
CONTRACT/AGREEMENT CHANGES:
Raises the not to exceed amount from $75,000.00 to $77,815.00.
STAFF RECOMMENDATIONS:
Approval
TOTAL COST: $77.815 including all ofthe
work done to date.
BUDGETED: Yes
No XX
COST TO COUNTY: $77.815
SOURCE OF FUNDS:
REVENUE PRODUCING: Yes
DOCUMENTATION:
AMOUNTPERMONTB_ Year
~Orvm/Purchasing _ Risk Management _
APPROVED BY:
Not Required_
DISPOSITION:
AGENDA ITEM #
Revised 2/05
III
KAPLAl\T KIRSCH ROCKWELL
RECF',:!;U
IJAN I , ~0011
MONROE COuNTY' ATTaJIl
January 9, 2007
VIA FACSIMILE AND FEDERAL EXPRESS
Mr. Geny Kelly
The Morganti Group, Inc.
1450 Centrepark Blvd., Stc. 260
West Palm Beach, FL 33401
Michael H. Olenick, Esq.
Carlton Fields
215 South Monroe Street
Suite 500
Tallahassee, FL 32301-1866
Mr. Tom Willi, County Administrator
County of Monroe
1100 Simonton Street
Key West, FL 33040
Suzanne A. Hutton, Esq.
Monroe County Attorney
Office ofthe Connty Attorney
P.O. Box 1026
Key West, FL 33041-1026
Re: Engagement for Legal Services: The Morganti Group, lnc. - M~nroe COlmty, Florida
Dear Ms. Hutton and Gentlemen:
By letter dated October 30, 2006, we set out the terms under which Kaplan Kirsch & Rockwell
LLP ("the Finn") would provide counsel to The Morganti Group, Inc. C'Morganti") on matters
conceming FAA requirements for federal grant-assisted construction projects at the Monroe
County airports ("FAA Matters"). During our conversation on December 19, 2006, Morganti
and the County of Monroe, Florida ("County"), the owner of the Monroe County airports,
requested that the Finn engage in a common representation of the County and Morganti with
respect to the FAA Matters and that Monroe County bear the cost for the Finn to provide such
representation. It is our understanding that Morganti has agreed to these requests from the
County. Accordingly, effective January l. 2007, this letter of engagement supersedes OUT
October 30, 2006 engagement letter. This letter also addresses any actual or potential conflicts
issues associated with the common representation of Morganti and the County and confirms that
the scope 0 f Ollr representation with respect to the FAA Matters will concem on l y matters 0 f
federal law and not matters of Florida law. We apologize for the formality ofthis letter but we
have learned from past experience that a fOTInal engagement letter is the best way to satisfy our
ethical obligations that we and our client understand our obligations in advance of any
representation.
AUQrneys at Law
Denver . New York . Washington, DC
Kaplan Kir:;ch & Ruckwell LLP
1675 Broadway, Suite 2300
Denver, CO 80202
lel: (303) 825-7000 .IlL
fax: (303) 825-7005
www.kaplankirsch.com
Morganti and Monroe County Engagement Letter
January 9, 2007
Page 2
Conflicts of Interest
TI1C Firm's common representation of Morganti and the County presents a number of potential
connicts of interest for the Firm. An attomey generally is prohibited from representing a client if
the representation of that client may bc materially limited by the lawyer's responsibilities to
another client or to a third person unless (1) the lawyer reasonably believes the representation
will not be adversely affected; and (2) the client consents after consultation. When representation
of multiple clients in a single matter is undertaken, the consultation must include explanation of
the implications of the common representation and the advantages and risks involved.
As we have discussed, common representation by the Firm may present certain advantages to
Morganti and the County in facilitating and coordinating steps required to generate necessary
documentation and in bringing the current construction contracts and bid documents into
compliance with FAA requirements. Common representation also may provide advantages in
advocating with the FAA on behalf of the County and Morganti in support of existing
contractual arrangements and procurement procedures implemented by the parties. However, as
we also discussed, issues may arise on which Morganti's and the County's interests may diverge.
These issues may include whether Morganti is entitled to additional compensation for any FAA
compliance obligations not presently included in its contract with the County, and methods of
addressing any fee amounts disallowed by the FAA, among others. In addition, there will be
circumstances in which the Firm has or gains knowledge of confidential infomlation from
Morganti or the County. The Finn may not disclose such information or use it to the
disadvantage of either the County or Morganti without consent after consultation with the
appropriate party.
Accordingly, to avoid any adverse effects to the common representation, if at any time in the
future, should the Finn believe that the interests of the County and Morganti are materially
adverse with respect to any issue or topic that arises during the common representation, the Finn
will immediately notify both the County and Morganti. In such case, upon request of Morganti.
the Finn will withdraw from representation of the County and continue to represent Morganti
with respect to the FAA Matters unless the resulting conflict of interest would, in our view,
render our continuing representation ofMorgantj unlawful or unethical, or the Fiml, Morganti
and the County agree on alternati ve arrangements.
In addition to addressing matters related to common representation, the Finn must disclose and
obtain consent from a client as a condition of accepting compensation for representing a client
[rom one other than the client. lv[onroe County has asked that the Firm charge Monroe County
for the Firm's services according to the schedule offees set forth below beginning as of January
1,2007. Morganti will not be responsible for payment of the Firm's fees after December 31,
2006 and this engagement letter will supersede the prior engagement letter on that date.
At
Morganti and Monroe County Engagement Letter
January 9,2007
Page 3
Accordingly, by agreeing to this engagement, the County and Morganti:
1. consent to the Firm's common representation of the County and Morganti with respect
to the FAA Matters and waive any actual or apparent conflict of interest associated with
such common representation.
2. acknowledge and agree that before providing such consent and waiver: (a) each
received adequate infol111ation from the Firm and opportunity for consultation
independent counsel with respect to the common representation; and (b) each received
an adequate explanation of the implications of the common representation and the
advantages and risks involved.
By agreeing to this engagement, the County also:
1. consents to and waives any actual or apparent conflict of interest associated with the
Finn's continued representation 0 f Morganti with respect to unrelated matters or in the
event the interests of the County and Morganti become materially adverse during the
course of their common representation on the FAA Matters
2. agrees that it has received adequate infOlmation from the Firm and opportunity to
consult with independent counsel before providing such consent and waiver
By agreeing to this engagement, Morganti also consents to and waives any actual or potential
conflict of interest related to Monroe County's payment of the Finn's fees and expenses as of
January 1,2007.
Finally, we cannot foreclose the possibility, that at some time in the future, an existing or future
Finn client may be adverse to Morganti or the County on matters completely unrelated to tlus
engagement. It also is possible that an existing Firm client is currently adverse to Morganti or
the County on a matter ofwruch we are unaware or in which we have no involvement. Morganti
and the County understand and agree that our representation of a client in either situation would
not constitute a conflict of interest as a result of this engagement.
Compensation
I anticipate at this time that the Firm's work on the FAA Matters will be performed principally
by my partner Polly Jessen and me. My current hourly rate is $395 per hour and Polly Jessen's
hourly rate is $300 per hour. The Firm charges fees in six minute (1/1 0 hour) increments. We
may have occasion to call upon the services of other Finn attorneys and paralegals, whose rates
range from $ I 85 to $450 per hour. The Finn annually evaluates its rates and will notify
Morganti and the County immediately of any anticipated changes in hourly rates; the Finn
occasionally revises our hourly rates but the quoted rates will remain in effect at least through the
end of 2007 .
)I
Morganti and Monroe County Engagement Letter
January 9,2007
Page 4
In addition to the hourly fee for services, the Firm also will charge the County for all necessary
and incidental and out-of-pocket expenses, including, but not limited to, travel costs and office
expenses such as photocopying, postage, etc. Out-of-pocket expenses are charged at actual cost.
It is the Finn's practice to send our clients a consolidated monthly invoice showing the amounts
billed for particular matters during the period covered by the invoice. At Morganti's and the
County's request, we will send our monthly invoice to Tom Willi for transmittal to the
appropriate Monroe County official for payment. Unless a client requests othelWisc, our invoice
contains daily detail for each lawyer's work on the client's matter. We can, however, prepare
that invoice in any fonnat that meets your needs in light of confidentiality concerns under
Florida public records laws.
Total fees and expenses to be billed to the County under this engagement letter shall not exceed
$50,000.00 otherwise agreed in writing by the County. The County's obligation to pay fees or
expenses billed for services performed under this engagement letter after September 30, 2007,
shall be subject to annual appropriation.
We urge you to raise any questions regarding our invoices as soon as they arise so that we can
resolve any problems promptly. We require that the County pay our fees promptly on a monthly
basis. We consider any invoice more than 30 days old to be overdue.
Termination of tbe Engagement
Upon completion of tile matter to which this representation applies, or upon earlier tennination
of our relationship, the attorney-client relationship will end unless Morganti, the County and/or
the Finn have agreed to a continuation with respect to other matters. Morganti and the County
each have the right at any time to tenninate OLlr services and representation upon written notice
to the Firm. We reserve the right to withdraw from our representation if, among other things,
Morganti Of the County fail to honor the tenns of the engagement letter, fail to cooperate or
follow our advice on a material matter, or any fact or circumstance (including any conflict of
interest between the County and Morganti or with another client) would, in our view, render our
continuing representation unlawful or unethical. Ifwe elect to withdraw, Morganti and the
County will take all steps necessary to free us of any obligation to perform further, including the
execution of any documents necessary to complete our withdrawal.
No termination of our representation by Morganti, the County or the Finn shall relieve the
County of its obligations under the terms of our engagement to pay for services rendered, costs
or expenses paid or incurred on Morganti's and the County's behalf with respect to the FAA
Matters. In the unusual event that a court of competent jurisdiction refuses to permit us to
withdraw upon termination, the County remains responsible for fees and costs. In the event we
are compelled to intervene in a pending lawsuit or initiate any proceeding in order to recover any
amount due under the terms of our engagement, the County will pay any and all attorneys' fees,
!IK
Morganti and Monroe County Engagement Letter
January 9,2007
Page 5
court costs and/or other expenses incurred by us to recover such amounts due us pursuant to the
terms of OUT engagement.
This engagement letter documents our entire understanding and agreement with respect to the
ten118 of our engagement and, as of January l, 2007, supersedes any prior understandings and
agreements, written or oral. If any provision of our engagement letter is held by a court of
competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions shall
remain in full force and effect. Our engagement letter may only be amended in writing by the
pmties hereto.
If the teIDIS described above are satisfactory to Morganti and the County, please so indicate by
signing this letter (or having the appropriate official sign it) and returning one signed copy to me.
We look forward to working with Morganti and the Couhtyin connection with the FAA Matters,
and we look forward to a mutually satisfactory relationship.
Since
eter J. Kirsch
Ii
Morganti and Monroe County Engagement Letter
January 9, 2007
Page 6
ACCEPTED AND AGREED:
On Behalf of The Morganti Group, Inc.
~ilJ?
Name: G~.RY K E1...&.Y
Title: I/I,~ "It Gi.s~IJOJ1'
;1It
Morganti and Monroe County Engagement Letter
January 9, 2007
Page 7
ACCEPTED AND AGREED:
On Behalf of County of Monroe, Florida
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III
KAPLAJ\J KIRSCH ROCKWELL
July 3, 2007
Suzanne A. Hutton, Esq.
Monroe County Attorney
Office of the County Attorney
P.O. Box 1026
Key West, FL 33041-1026
Re: Amended Budget for Legal Services
Dear Ms. Hutton:
As you are aware, Kaplan Kirsch and Rockwell's billings have exceeded the $50,000 budget that
Monroe County ("County") approved earlier in the year for representation with respect to FAA
issues. Our invoice for services provided through June 30,2007 is attached. As you requested,
we are providing this letter to amend the budget set forth in our original engagement letter dated
January 9, 2007.
The originally contemplated scope of representation was the resolution of the issues raised by
FAA with respect to the federal grant-assisted construction projects at th,? County airports. The
original issues appear to be substantially resolved with the exception of certain FAA comments
regarding federal funding percentages that do not appear to be fully consistent with the County's
approved funding plans and some potential issues related to costs incurred prior to February 2,
2007. We anticipate that some additional time may be required to finalize a documentation
package that will be provided to FAA in response to these issues and to follow up with FAA if
questions remain.
If a meeting with FAA is not required, we expect that a budget increase of $15,000 should be
sufficient to cover time for work done in June and time required to finalize a documentation
package and some follow up with FAA by telephone as appropriate. Ifa meeting with FAA
becomes necessary or desirable, we expect the additional cost of attendance to be roughly
$10,000 to $15,000 for time and out-of pocket costs. The cost will depend on whether one or
two people attend and whether Tom Devine attends from our Washington D.C. office or Peter
Kirsch and/or I attend from Denver.
As you recall, the original budget approved for Kaplan Kirsch did not include services that
Kaplan Kirsch has subcontracted to TetraTech, although we determined with the County that
there would be advantages to coordinating those services through our office. TetraTech's fees
were $9,500 (and may have included some additional out-of-pocket costs). So, an increase of the
total Kaplan Kirsch budget to $60,000 is consistent with the original budget approved for this
Attorneys at Law
Denver . New York . Washington, DC
Kaplan Kirsch & Rockwell LLP
1675 Broadway, Suite 2300
Denver, GO 80202
tel: (303) 825-7000
fax: (303) 825-7005
www.kaplankirsch.com
July 3, 2007
Page 2
work. We propose increasing the budget to $75,000 to accommodate the potential that a meeting
with FAA will be necessary and/or to provide some buffer in the event that the County requires
additional assistance with these or with other issues related to funding that may arise prior to the
completion of construction.
Please let me know if you have any questions or need some additional information. If this
proposed budget increase is acceptable, please indicate the County's approval by having the
appropriate individual sign below and returning one originally-executed letter to me for our files.
We have appreciated the opportunity to work with you and hope that we may continue a
mutually satisfactory relationship. Thank you, again.
~;;f.l:~~--
Enclosure
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cc: Mr. Gerry Kelly
Pedro Mercado, Esq.
Michael Olenick, Esq.
Mr. Tom Willi
ACCEPTED AND AGREED:
On behalf of County of ~onroe, Florida
~~l}~
BOARD OF COUNTY COMMISSIONERS
N~e: OF~mwEOOUNTY;mwRrnA
Date
~). t ! i~ 4\ ~ i 1 (HI;
CO"~':';~~)7~" .
~.JL7.~.. ..-
Title: Mayor Mario DiGemmro
5 2007
County of Monroe, FL
Tom Willi
1100 Simonlon Street
Key West, FL 33040
Client MaHer fO:
1312.02 FAA Matters
Kaplan Kirsch & Rockwell LLP
1675 Broadway
Suite 2300
Denver, CO 80202
(303} 825-7000
EIN 05-0573472
Statement as of June 30, 2007
Statement No. 3828
Current Fees:
Current Expenses:
Total Current Billing:
Previous Balance:
Total Now Due:
4,120.00
149.60
4,269.60
5,248.10
9,517.70
Kaplan Kirsch & Rockwell LLP
1675 Broadway
Suite 2300
Denver, CO 80202
(303) 825-7000
EIN 05-0573472
Statement as of June 30, 2007
Statement No. 3828
County of Monroe, FL
Tom Willi
1100 Simonton Street
Key West, FL 33040
1312-02: FAA Matters
Professional Fees Hours Rate Amount
611 f2007 TRD Review materials from P. Jessen concerning PFC 1.70 425.00 722.50
and AlP eligibility and terminal project at Key
West; telephone conference with P. Jessen to
discuss telephone conference with client and
issues to analyze in moving ahead
6/1/2007 PBJ Identify and forward materials package to T. Devine 0.30 300.00 90.00
re: letter to FAA on financing issues
6/5/2007 TRD Review documents; draft inserts for letter to FAA; 1.50 425.00 637.50
review and revise letter
6/8/2007 PSJ Review additions to letter to FAA and conference 0.30 300.00 90.00
with T. Devine re: same
6/21/2007 PSJ Finalize and transmit funding response package to 2.50 300.00 750.00
P. Mercado and P. Horton; draft brief
memorandum to P. Mercado re: budget increase
6/25/2007 TRD Review changes to letter; review background 1.10 425.00 467.50
documents; telephone conference with p, Jessen
10 convey changes to letter; review revised lelter
6/25/2007 PBJ Conference with T. Devine, P. Mercado and P. 1.30 300.00 390.00
Horton re: package for transmittal to FAA; review
IransmittalleUer
6/26/2007 TRD Review F. Newton comments on draft letter to FAA 0.20 425.00 85.00
6/27/2007 TRD Telephone conference with P. Jessen concerning 0.90 425.00 382.50
revised letter; review and revise letter to FAA
based on review of FAA letters on PFC notices;
circulate revised letter to F. Newton, P. Jessen, D.
Spector
6/27/2007 PBJ Revise lelter to FAA; conference with 1. Devine re: 1.00 300.00 300.00
same
6/28/2007 TRD Email excllanges with P. Jessen and F. Newton 0.20 425.00 85.00
concerning questions for letter to FAA
6/28/2007 PSJ Conference with F. Newton re: completion of letter 0040 300.00 120.00
Kaplan Kirsch & Rockwell LLP
and coordination with P. Horton
Expenses
6/29/2007
Photocopies
Color Photocopies
Rate Summary
Thomas R. Oevine
Polly 8. Jessen
Sub-total Hours: 11.40 Sub-total Fees:
5.60 hours at 425.00 /hr
5.80 hours at 300.00 /hr
Sub-total Expenses:
Total Current Billing:
Previous Balance:
Total Now Due:
Page: 2
4,120.00
75.60
74.00
149.60
4,269.60
5,248.10
9,517.70
REMITTANCE COPY
Return with Payment
County of Monroe, FL
Tom Willi
1100 Simonton Street
Key West. FL 33040
Amount Due:
9,517.70
PLEASE REMIT TO:
Kaplan Kirsch & Rockwell LLP
1675 Broadway #2300
Denver, Co 80202
Statement Number: 3828
Statement Date: June 30,2007
Matter 10: 1312-02
_II
KAPLAN KIRSCH ROCKWELL
July 11, 2007
ST A TEMENT REGARDING INTERNAL COSTS
Client/Matter No.:
1312-02
Billing Month:
June 2007
Statement No.:
3828
Black & Vlhite Photocopy Charges;
378 Copies at $0.20 per copy:; $75.60
Color Photocopy Char@:es:
148 Copies at $0.50 per copy:; $74.00
FacsimHe Char~es:
o Pages at $1.00 per page = $0.00
If you have any questions or require anything further, please contact our office.
~ ,~-rr~
Edna Y ribia Trujillo
Firm Administrator
Attorneys at Law
Kaplan Kir~ch I!.: nod~\\dl HI'
16'75 Bnlad\\ay. Sulte 2.'>00
Denver, CO IHl202
!el: UO;S) illS- 7(JO()
fax: (:)(I)) :-125- "7(Hl'i
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