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1. 01/17/2007 Agreement Clelt oflhe Circol Coon Danny L. Kolhage Office (305) 295-3130 Fax (305) 295-3663 Memorandum To: Tom Willi, County Administrator Attn: Connie Cyr Isabel C. DeSantis, ; ~ Deputy Clerk ;J From: Date: Friday, January 19, 2007 At the BOCC meeting held on January 17, 2007, the Board granted approval and authorized execution of an Engagement Agreement between Monroe County and the law firm of Kaplan, Kirsch, Rockwell for outside legal services to The Morganti Group, Inc. Attached hereto is a duplicate original for your haodling_ Should you have any questions concerning the above, please do not hesitate to contact this office. cc: Finance County Attorney, Hand-Delivered File ./ III KAPLAN KIRSCH ROCKWELL RECE:\'LD IJAN I I ~0071 MONROE COuNTY ATT-, January 9,2007 VIA FACSIMILE AND FEDERAL EXPRESS Mr. Gerry Kelly The Morganti Group, Inc, 1450 Centmpark Blvd" Ste, 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 of the County Attorney P.O. Box 1026 Key West, FL 33041-1026 Re: Engagement for Legal Services: The Morganti Group, Inc. - Monroe County, Florida Dear Ms, Hutton and Gentlemen: By letter dated October 30, 2006, we set out the terms under which Kaplan Kirsch & Rockwell LLP ("the Firm") would provide counsel to The Morganti Group, Inc, ("Morganti") on matters concerning 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 Firm 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 Firm to provide such representation, It is our understanding that Morganti has agreed to these requests from the County. Accordingly, effective January 1, 2007, this letter of engagement supersedes our 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 of our representation with respect to the FAA Matters will concern only matters of federal law and not matters of Florida law, We apologize for the formality of this letter but we have learned from past experience that a formal engagement letter is the best way to satisfy our ethical obligations that we and our client understand our obligations in advance of any representation. Attorneys at Law Denver . New York . Washington, DC Kaplan Kirsch & Rockwell LLP 1675 Broadway, Suite 2300 Denver, CO 80202 tel: (303) 825-7000 .JIi. fax: (303) 825-7005 www.kaplankirsch.com Morganti and Monroe County Engagement Letter January 9, 2007 Page 2 Conflicts of Interest The Firm's common representation of Morganti and the County presents a number of potential conflicts of interest for the Firm. An attorney generally is prohibited from representing a client if the representation of that client may be 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 elients 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 information from Morganti or the County. The Firm 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 Firm 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 Firm will immediately notify both the County and Morganti. In such case, upon request of Morganti, the Firm 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 of Morganti unlawful or unethical, or the Firm, Morganti and the County agree on alternative arrangements. In addition to addressing matters related to common representation, the Firm must disclose and obtain consent from a client as a condition of accepting compensation for representing a client from one other than the client. Monroe County has asked that the Firm charge Monroe County for the Firm's services according to the schedule of fees 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. //I( 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. ac1mowledge and agree that before providing such consent and waiver: (a) each received adequate information 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 Firm's continued representation of Morganti with respect to unrelated matters or in the event the interests ofthe County and Morganti become materially adverse during the course of their common representation on the FAA Matters 2. agrees that it has received adequate information 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 Firm'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 Firm client may be adverse to Morganti or the County on matters completely unrelated to this engagement. It also is possible that an existing Firm client is currently adverse to Morganti or the County on a matter ofwhich 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 (1/10 hour) increments. We may have occasion to call upon the services of other Firm attorneys and paralegals, whose rates range from $185 to $450 per hour. The Firm annually evaluates its rates and will notify Morganti arid the County immediately of any anticipated changes in hourly rates; the Firm occasionally revises our hourly rates but the quoted rates will remain in effect at least through the end of 2007. /iI 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 Firnl'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 otherwise, our invoice contains daily detail for each lawyer's work on the client's matter. We can, however, prepare that invoice in any format 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 bill1ed for services performed under this engagement letter after September 30, 2007, shall be subject to annual appropriation. We urge YOIJ 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 the Engagement Upon completion of the matter to which this representation applies, or upon earlier termination of our relationship, the attorney-client relationship will end unless Morganti, the County and/or the Firm have agreed to a continuation with respect to other matters. Morganti and the County each have the right at any time to terminate our services and representation upon written notice to the Firm. We reserve the right to withdraw from our representation if, among other things, Morganti or the County fail to honor the terms 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 Firm 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, 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 our engagement. This engagement letter documents our entire understanding and agreement with respect to the terms of our engagement and, as of January I, 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 parties hereto. If the terms 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 County in connection with the FAA Matters, and we look forward to a mutually satisfactory relationship. !It Morganti and Monroe County Engagement Letter January 9, 2007 Page 6 ACCEPTED AND AGREED: On Behalf of The Morganti Group, Inc. - AtII4- Name: Ga,f(Y k'El.&.Y Title: ~:.. /Ill ..UllfDJT ~ Morganti and Monroe County Engagement Letter January 9,2007 Page 7 ACCEPTED AND AGREED: On Behalf of County of Monroe, Florida 0t~l}~ > Name: A "-1'/0 D/C~., .,a.K'O Title: -7&/ ayo r M~E COUNT frLOV. DA AS PEDROcJ NTY ATTORNE{ tl!1J 7 DaW tSEA4 '~IjjA.GECI.EllJ< . 6> ~.~ OE~U1YCLEB' 3: ~ <::> 0 0 <::> .., :z > ..... r: :;0 Z c... M 0("")-""" :roo rr'1r-~ Z CJ :;>;; -'1 C,). r.' 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