Item P10
BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: January 17. 2007
Bulk Item: Yes XX No
Division: County Administrator
Staff Contact Person: Tom Willi
AGENDA ITEM WORDING:
Approval of engagement agreement with the law :firm of Kaplan, Kirsch, Rockwell for outside legal
servIces.
ITEM BACKGROUND:
Kaplan Kirsch & Rockwell is a national firm with an expertise in F .AA grant compliance issues.
Kaplan Kirsch & Rockwell was initially engaged by Carlton & Fields, the attorneys for The Morganti
Group, in order to resolve F.AA. grant compliance issues that arose in the Morganti subcontracts. On
December 7, 2006, the CAY, the Airport Director and the Architect Engineer for the KWIA project
met with a representative of the F.AA to address issues related to grant compliance. Since Kaplan
Kirsch & Rockwell was engaged to resolve these issues, the CAY requested that K K & R be allowed
to attend the meeting by phone. Notwithstanding the fact that in resolving the grant compliance issues K
K & R serves the County interest, the request was denied because K K & R was retained by Morganti
instead of the County and the grant agreement is between Monroe County and the F.AA By entering
into this agreement K K & R becomes the County's agent and can now deal directly with the F .AA on
the County's behalf to resolve the grant compliance issues.
PREVIOUS RELEVANT BOCC ACTION:
Approved execution of the G.M.P. amendment at the December 2006 B.O.C.C. meeting
Verbally approved the G.M.P. amendment at the November 2006 B.OC.C. meeting.
Approved the amendment to the contract awarding the Marathon Airport Hurricane Damage Repairs on
March 15,2006.
Approved the award of the C.M. at Risk contract to the Morganti Group on October 19,2006.
CONTRACT/AGREEMENT CHANGES:
N/A
STAFF RECOMMENDATIONS:
Approve
TOTAL COST: $50,000
COST TO COUNTY: $50.000
BUDGETED: Yes
SOURCE OF FUNDS:
No XX
REVENUE PRODUCING: Yes No XX AMOUNT PER MONTH Year
eM --tdf'h7 --
APPROVED BY: County A~ OMBlPurchasing _ Risk Management_
DOCUMENTATION:
Included x
Not Required_
DIsPOsmON:
AGENDA ITEM #
Revised 2/05
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01/09/1001 16:31 FAX 3038257005 KAPLAN Kt~~ & ROCKWELL
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KAPLAN KIRSCH ROCKWELL
FACSIMILE TRANSMITTAL SHEET
TO:
Tom Willi. County A.dmiDiBtrator
FIRM/COMPANY;
County ofMoaroe
FAX NL"MBER.:
(JOt 292-4544
PHONE NUMBER:
PROM:
M.ytin Woods, UgalAssismnt
DATF..:
1/9/'lJXfl
TOTAL # OF PAGES INCL.. COVER:
9
ClJENT /MALTER ~"'UMBER:
RE:
Engaganmt for Legal Setvices - 'Ihe Motganti Group
Notes/Comments:
Mr. Willi:
Please see flttac:bed cottespondence from Polly Jessen ...m-.lnting a signed copy of the
engagement fot' legal savices for The Morganti Group, Inc..
The ~CIJDbr:ioodinthi< faaimiIe~. ~~md~_.iDRlIIW only futdae_oflbt
~ oreatily1l8mCd.o.-. Jf tbc Jeader of 1bS ~is _l!..iclmdedmipir:at. oclho::~Ol'lIfIId ~ to ~it
in th<: ialmdr.d m:ipialt, rue. _hereby POIi6ecl !ha.., .....~~ dioabdion orcopJ'ingof thit~io 0I1icdJ pdJibirAl4 If
you lmoe l'<<Ciwd * ~ in m"OC, plrueJiOlifJ- ~ by ~ 1lld recum tbt ozisiad ~ In lIS bJ__u r:Ie
MtoJ'lley6 .. Law
nooyer . New York . Was~OD, DC
lapJa.n Kirscb &:. RockweU u.p
1675 8roadny: Sldte ~500
lJc.llvff. co 8OlO2
tel; (~3} lU5-7000
In: {3&3)82j-700s
www.bplaoidt.sdJ.com
01/09/1007 18~38 FAX 3038257005
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!<APLAN KIRSCH ROCKWELL
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January 9, 2007
VIA FEDERAL EXPRESS
Mr. Gerry Kelly
The Morganti Group, Inc.
1450 (',entrepark Blvd,
Suite 260
West Palm Beach, FL 33401
Re: ,Engagement for Legal Services: The Morganti Group, Inc. - Monroe County. Florida
Dear Geny:
At the request of Monroe County. I have revised the original engagement you received dated
December 29, 2006, to include the following additional paragraph in the section titled
"Compensation If:
Total fees and expenses to be billed to the County under I.his engagement letter
shall not exceed $50,000.00 unless otherwise agreed in writing by the County.
The County's obligation to pay fees or expenses billed for services perfumed
under this engagement letter after September 30, 2007, shall be subject to mmual
appropriation.
Attached are three originally executed copies of the revised engagement letter fur}'OUr signature,
Please discard the December 29, 2006, letter you received and replace it with the attached letter
dated January 9. 2007. Then, please send aD three originally executed copies by overnight
delivery to Suzanne Hutton and fax one to me. Ms. Hutton will arrange for the County to
execute th.e letter upon Board of Cmmty CoTIJlllissioners approval at the next meeting on January
17,2007.
Please do not hesitate to contact PoUy Jessen or me witb any questions
~inc y,
,Polly B. essen 'ft/l-
" cc:' Michael R. Olenick, Esq. (via email)
Tom Willi (via email)
Suzanne A. Hutton, Esq. (via email)
Enclosures
Attorueys :at Law
Omver . New YOIt . WashinglOO, DC
lap.\anilrsc:h & Rockwell I.LP
16;15 Broadway, 3u1te 1300
Deuy'!r, 00 8OZ02
tel: (303) 825-1000
l'ix: (303) 815.7005
www.kaplankjrsclu:OID
01/09/%007 16:38 FAX 3038257005
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KAPlAN I<IRSCH ROCKWELL
I muary 9, 2007
VIA F ACSIMIT..E AND FEDERAL EXPRESS
Mr. Geny Kelly
The Morganti Group~ Inc.
1450 Cent.n:park Blvd., Ste. 260
West Palm Beach. Fl. 33401
Michael H. Ole.nic14 Esq.
Carlton Fields
215 Sooth Monroe Street
Suite 500
Tall:ahassee, ,FL 32301-1866
Mr. Tom Willi, County Administrator
. County of Monroe
1 i 00 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: Eng~gement for Legal Senices: The Morganti Group, Inc. - Monroe County, Florida
Dear Ms. Hutton and Gentlemen:
By letter dated October 30. 2006. we set out the terms Wlder which Kaplan Kirsch & RookwelI
LLP (..'the Firm") would provide counsel to The Morpnti Group, Inc. ("Morganti; on matters
concerning FAA requirements fur federal grant-assisted construction projects at the Monroe
COlUlty 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 reprcscntation of the County and MorpnU with
respect to theF AA Matters and that Monroe County bear the cost for the Fnm to provide such
representation. It is OUT understanding that Morganti has agreed to these requests ftODl the
County. Accordingly, effective January 1. 2001. this letter of engagement supersedes our
October 30, 2006 engagement letter. This letter also addresF.es any actual or potential conflicts
issues associated with the common Tepresentation of Morganti and the County nd confirms that
the scope of our representation with respect to the FAA Maners will roncem only matters of
federaJ.lawand not matters of Florida law. We apologize for the fonnaJity of this letter but we
have learned from past experience that a fonnal 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 taw
Denver . New York .. Washington. DC
laplan lirscb & RoclcvrelllJJ'
1675 ~y, Suite 2~
Denver, CO so-ltn
tel: (303) 825-?000
lax: (~) 825-7005
www.bplankirscb:oom
01/09/2007 18=~9 FAX 3038ZG1005
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Morganti and Monroe County Engagement Letter
January 9, 2007
Page 2
Conflicts of Interest
The Finn's common repoosentation of Morganti and tbe County presents a DUIIlOOr of potential
conflicts of interest for the Firm. An attoroey generally is prohibited from n:presenting a client if
the.repre6CDtation 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 Jepreseotation
will not be adversely affected; and (2) the client consents after ronsultation. When representation
of-multiple clients in a single matter is undertaken, the consultation must include explanation of
the implications of the common representation aod the advantages and risks involved.
As we have discussed. common represeIltatton by 1he Fum may present certain advan1age8 10
Morganti and the County in facilitating and coordinating steps n:quircd to generate necessary
documentation and in bringing the current construction contracts. and bid docum.mts into
compliance with FAA requirements. Commun representation also may provide'advantages in
advocating widt the FAA on behalf of the C..ounty and Morganti in support of existing
oontractual ammgements and procurement procedures implemented by the parties. Howtwer, as
we also disc~ issues may arise on which Morganti's and the Comity's interests may diverge.
These issues may include whether Mm:ganti is entitled to additional compensation for any FAA
compliance obligations not presently included in its cootract with the County, and methods of
addressing any fee amounts disaIl()~'ed by the F ~ among others.. In addition, there will be
circumstances in which the Finn bas or gains knowledge of confidential in.fo111lation from
Morganti or the County. 'The Finn may not disclose such infunnation or use it to the
disadvaotogc of either the County or Morganti without consent a.ftet consultation with the
appropriate party.
Accordingly, to avoid any adveTSe effects to tbe common representation, if at any time in the
future. should the Finn believe that the interests oCtile County and Morganti are materially
adverse with respect to any issue or topic that arises dnring the oommon representation. the Finn
win 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 ofinterest would, in our view,
render our continuing representation of Morganti unlawful orunetbica1, or the Fi:rm, Morganti
and the County agree on alternative anangemems..
In addition to addressing matters related to common representation, the FinD nmst disclose and
obtain consent from a client as a condition of accepting compensation for representing a clicm
from one other than the client. Monroe County haa asb!d t!tat the Firm charge Monroe Cowuy
for the Firm s services accordmg to the schedule of fee$ set forth below beginning lIS of JlHf'IIllrJl
1. 2nO? 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 dale.
01/09/%001 18:39 FAX 30.8%51085
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Morganti and Monroe County Engagement Letter
January 9, 2007
Page 3-
Accordingly, by agreeing to this engagement. the County and Mmganti:
1. consent to the Finn's common representation of tile Coonty and Morganti with respect
to the FAA Matters and waive any actual or apparent conflict nfinterest associated with
such common representation.
2. acknowledge and agree that before providing such consent and waiver; (a) eaeh
received adequate infurmation from the Firm and opportunity for consultation
indepeodent counsel with respect to the common representation; and (b) each received
an adequate explanation ofttle impticatioos of the common representation and 1hc
advantages and risks involved.
By agreOOtg to this engagement, the County also:
1. COIl8CIltS to and waives any actual or apparent conflict of interest associated with the
Finn's continued revt~on of Morganti \\oitb respect to unrelated matters or in the
event the intereSts of the County aDd Morganti become materially adverse durin8 the
course of thcit common representation on the FAA Matters
2. agrees that it has received adequate inbmation from the Firm and opportunity to
consult with independtmi counsel before providing such consent and waiver
By agreeing to this engagement, Morganti also consents tn 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, au existing or future
Firm client may be adverse to Morganti or the County 00 matters completely unrelated to this
engagement. It also is possible that an existing Finn client is currently adverse to Motpnti or
the County on a matter of which we are unaware or in which we have no involvement. Morganti
and the County underslm1d and agree that our R:pIl'l8eDtaUon 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 Finn's worlt on the FAA Matters wilt be performed principally
by my partner Polly Jessen and mc. My current hourly rate is $395 pet hour and pony Jessen's
hourly rate is $300 per hour. The Finn cbarges fees in six minute (JltO hour) incremenfB. We
may have occasion to call upon the services of other Finn attorneys and paralegals, whose rates
range:from S185 to $450 per hour. The Finn annually eva1nates 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 wiII remain in effect at least through the
end of2007.
01/09/2097 18:40 FAl 1038%57905
KAPLAN KiRSCH ~&RocUELL----'-'~------- -----.--- "'006.-....------
Morganti and. Monroe County Engagement Letter
January 9, 2001
Page 4
In addition to- the hourly fee far services, th6 Firm also will charge the Cotmty for all necessary
and incideotaJ 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 Firm's practice to send our climb! a consolidated monthly invoice sbGwing the amounf1l
billed fur particular matters during the period ooyered by the invoice. At Morganti's and the
County's request, we will send our monthly invoice to Tom Willi for tnmsnlittaJ to the
appropriate Monroe County official for payment. Unles..o; 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 thrroat that meets your needs in light of confidentiality concerns UDder
Florida public records laws.
Total fees and expenses to be billed to the Comlty under Ibis engagement letter shall not exceed
$50,000.00 otherwise agreed in writing by the County. The Counifs obligation to pay fees or
expenses billed for seIVices perfunned under this engagement letter after September 30, 2007.
shall be subject to annual appropriation.
We mge you to raise any questions regarding OUT invoKes as soon as tlrey arise SO that we can
resolve any problems promptly. We require that the County pay our tees promptly on a montbJy
basis. We consider any invoice more than 30 days old to be overdue.
Termination of the Engagement
Upon completion (}f the matter to which lhis represeolation applies, or upon earlier termination
of our relationship, the attorney-client relationship will end unless Morganti. the County and/or
the Firm ha~'e agreed to a continuation with respect to other ma1tel's. Morganti and the County
each bave the right at any time to temrinate our services and repn:sc:ntation upon written notice
to the Finn. We reserve the right to withdraw from our Jepl~ntation it among other things.
Morganti or the County fail to honor the terms ofthc engagement letter, fail to cooperate or
foUow our advice on a material matter, or any 13ct or ciroumstance (including any conflict of
interest between the County and Morganti or with another client) would, in 00l" view, JDlder our
continuing representation unlawful or unethical If we elect f,o withdtaw, Morganti and the
Cowrty win take all steps necessary to free us of any obligation to perform furthel', 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
C.ounty of its obligations UDder the terms of our engagement to pay fur services rendered, costs
or expen..<;es paid or incurred on Morganti's and the County's behalfw:ith respect to the FAA
Matters. In the unusual event that: a court of competent jurisdiction refuses ro permit us to
withdraw upon tennination, the County remains responsible fOe fees and costs. In the event we
are compelled to intervene in a pending lawsuit or initiate any proceeding in onfer to recover any
amount due under the tenns of our engagement, the County will pay any and all attomeys' fees,
._~9/20lJ7 UI~40 FAX 3038%57005
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Morganti. and Monroe County Engagement Letter
January 9, 2007
Page 5
court costs and/or other expenses incurred by us to recover sud1 amounts due us pursuant to (be
tenns of our engagement.
This engagement letter docUlJKmts our entire understanding and agreement with respe::cl to the
terms of our engagement and, as of January I. 2007. supersedes any prim' under8tandinp and '
agreements. written or oraL If any prmision of our engagement Jetter 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 e.ngagement letter may only be amended :in writing by the
parties hereto.
If the terms described above are satisfactory to Morganti and the County. please 90 indicate by
signing this letter (01' baving the appropriate official sign it) and retmning one signed copy to me.
We look fotward to working with Motpnti and the C.ollllty in connection with the FAA Matters.
and we look forward to a mntuaJly satisfilctOJy:relationship.
~~
01/&9/2007 16:41 FAX 3038257005
XAPLAH IURSCB &. ROClOfELL
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Morganti and Monroe County Bn~ement Letter
January 9, 2007
Page 6
ACCEPTED AND AGREED:
On Behalf of The Morganti Group, Inc.
Name;
Title:
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01/09/2001 16:41 FAX 30~3!5100S
KAPlAlf II RSCH .. ROCKWELl.
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Morganti and Monroe County Engagement letter
January 9, 2007
Page 7
ACCEPTED AND AGREED:
On Behalf of County of Mo~ Florida
Name:
Title;
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