HomeMy WebLinkAboutRESOLUTION NO 12 11 237L
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STATE OF GEORGIA
COUNTY OF FULTON RESOLUTION NO. 12-11-237
A RESOLUTION APPOINTING AND AUTHORIZING SPECIAL COUNSEL TO
REPRESENT THE CITY TO OBTAIN A LOCAL OPTION SALES TAX
("L.O.S.T.") DISTRIBUTION CERTIFICATION AS REQUIRED UNDER THE
LAWS OF THE STATE OF GEORGIA; TO AUTHORIZE SAID COUNSEL TO
ASSIST IN THE PREPARATION, PRESENTATION AND LITIGATION OF THE
CITY'S CASE; REPEAL INCONSISTENT PROVISIONS; AND FOR OTHER
PURPOSES.
WI TNE SS E T H:
WHEREAS, the City of Milton ("City") is a municipal corporation duly
organized and existing under the laws of the State of Georgia, and is charged with
providing public services to its residents; and
WHEREAS, the City wishes to cooperate with its fellow cities in mediation and
litigation and work jointly with and through Special Counsel to achieve a fair distribution
ofL.O.S.T. proceeds in accordance with the L.O.S.T. enactment; and
WHEREAS, the Mayor and City Council in the exercise of their sound judgment
and discretion, after giving thorough thought to all implications involved, and keeping in
mind the public interest and welfare of the citizens of the City, have determined it to be in
the best interest of the citizens ofthe City, that this Resolution be adopted.
THEREFORE, IT IS NOW RESOLVED BY THE CITY COUNCIL OF
THE CITY OF MILTON, GEORGIA, AS FOLLOWS:
1. Retention of Special Counsel. The City hereby retains Andrew J. (Andy) Welch,
III, and the law firm of Smith Welch Webb & White ("Special Counsel") to
represent the City jointly with other cities which adopt a like Resolution. Special
Counsel may be asked by the Mayor or by a majority of the City Council to
appear and provide an update on the status of the mediation and litigation to the
City Council as a whole in accordance with the Open Meetings Act.
2. Authorization to Special Counsel. The City hereby authorizes Special Counsel to
acknowledge service on behalf of the City; to represent the City jointly with other
cities to negotiate and secure a L.O.S.T. distribution certificate or litigate for a
judicially-determined L.O.S.T. distribution certification with the County in
accordance with the laws of the State of Georgia; negotiate settlement, determine
litigation strategy, and to prepare, file and conduct litigation, as needed.
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3. Representation of City to Special Counsel. The City represents that it will pay its
portion of legal fees, expert witness fees, and all other costs and expenses of
litigation incurred by Special Counsel. The City shall pay any fees consistent
with its current LOST share; and, to the extent the City's LOST share is modified
as a result of the present arbitration process, the City shall supplement those fees
paid in accord with its new LOST percentage.
4. Designated Representation of the City. The Mayor, or hislher designee, is hereby
designated and authorized to serve as the Cities designated representative for
L.O.S.T. mediation and litigation and should be the City's point of contract for all
communications between Special Counsel and the City.
5. Settlement. Special Counsel agrees that the best and final offer pursuant to
O.C.G.A. 48-8-89(d)(4)(B) or non-judicial entry into a L.O.S.T. distribution
certificate with the County shall be subject to and conditioned upon a final
approval by majority vote of the Mayor and City Council. This agreement
notwithstanding, the City of Milton Reserves its right to elect absentee
municipality status under O.C.G.A. 48-8-89 and Special Counsel shall take no
action that would prejudice the City's right to absentee status unless and until the
City Council approves such action prior to the action being taken.
6. Joint Representation and Waiver of Confidentiality. The City acknowledges that
Special Counsel will represent it jointly with other cities which likewise retain
Special Counsel to represent their interest in negotiations and litigation of a
L.O.S.T. Apportionment Agreement and Certification with the County. The City
warrants that its governing body has read the joint-representation letter dated
October 22, 2012 to Milton and attached hereto and incorporated herein as
Exhibit "A" and no conflict of interest exists at this time between the City and any
other of said cities with respect to the joint representation contemplated in this
Resolution. Should a conflict of interest arise, the City agrees to promptly notify
Special Counsel in writing and allow Special Counsel to continue representation
so long as continued representation does not violate the Georgia Rules of
Professional Conduct. The City has had the opportunity to discuss the terms of
this Resolution with its attorney of choice and hereby waives its right to
confidentiality with Special Counsel and the other jointly represented Cities with
respect to Special Counsel performing the representation contemplated in this
Resolution. The Mayor is hereby authorized to execute the Acknowledgment of
joint representation which includes a waiver of confidentiality and conflict
identification as contemplated herein.
7. Additional Documents. The City Council authorizes the Mayor to execute any
documents, including those necessary for negotiation, mediation and litigation,
which may be necessary to effectuate this Resolution.
8. Attestation. The City Council does hereby authorize the City Clerk to attest the
signature of the Mayor appearing on this Resolution and any related documents,
to affix the official seal of the City thereto, as necessary, and to place this
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records ofthe City for future reference.
9. Severability. To the extent any portion of this Resolution is declared to be
invalid, unenforceable, or nonbinding, that shall not affect the remaining portions
ofthis Resolution.
10. Repeal of Conflicting Provisions. All City resolutions are hereby repealed to the
extent they are inconsistent with this Resolution.
11. Effective Date. This Resolution shall take effect immediately.
THIS RESOLUTION adopted this 19th day ofNovember, 2012.
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l [SIGNATURES ON FOLLOWING PAGE]
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PROFESSIONAL SERVICES AGREEMENT
T~IS PROFESSIONAL S~RVICES AGREEMENT ("Agreement") is entered into
this / q7J! day of NO vetrJ oe£.. , 2012 by and between Brown Pelican Consulting,
LLC, a Georgia Limited Liability Company with its principal place of business in Savannah,
Georgia ("BroVv'Il"), and the municipalities identified on Appendix I hereto ("Cities"), located in
Fulton County, Georgia ("Fulton County").
WHEREAS, the Cities and Fulton County must prepare, agree upon and submit to the
Georgia Department of Revenue a Local Option Sales Tax ("LOST") certificate, or proceed to
Fulton County Superior Court and submit to the Court a last-best-offer in arbitration pursuant to
Georgia law; and
WHEREAS, BroVv'Il is engaged in the business of providing consulting services solely to
cities as such services pertain to Georgia's LOST distributions; and
WHEREAS, the Cities wish to engage the services of Brown;
~O'V, THEREFORE, in consideration of the foregoing and the mutual promises herein
contained. the parties hereto agree as follows:
1.
SERVICES
Brown will consult with the Cities' representatives and the Cities' elected officials,
officers, and employees relating to Georgia's LOST law. The services to be performed by Brown
("Services") shall be specifically to assist the Cities as follows:
• Review the Cities' and Fulton County's data in support of the criteria set forth in the
LOST law, and prepare material for establishing an advantageous position of the
Cities with respect to a new share of LOST proceeds applicable to Fulton County;
• Perform services so that the allocation of total LOST proceeds to be shared by the
Cities is based upon the factors set forth in OCGA §48-8-89;
• Develop such \vritten repons as will aid the Cities in their negotiations with Fulton
County in the distribution of the LOST proceeds to the County;
• Work with the Cities' Negotiating Committee and City Attorneys to provide a
periodic status report outlining the document gathering and identifying how the data
is being applied to each ofthe specialized requirements ofO.C.G.A §48-8-89(b).
Such Services may include representation, advocacy and testifying in alternative dispute
resolution and arbitration, as prescribed in the LOST statute and as desired by the Cities.
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2.
PAYMENT
Brown will be paid at the rate of one hundred fifty dollars ($150.00) per hour for the
Services described above. Brown \\'ill submit periodic invoices to a single point of contact
specified by the Cities. The cost of travel, lodging, and miscellaneous expenses will be invoiced
at cost. Brown will use its best efforts to perform the Services required under this Agreement in
such a manner as to minimize expenses. Lodging will be typical of business travel in the Fulton
County area. Any mileage expense will be at the rate of 55¢ per mile.
3.
RELA TIONSHIP OF PARTIES
The parties agree that Brown is an independent contractor and is not an employee or
agent of the Cities. No benefits are to be paid or provided to Brown, including but not limited to
workers' compensation, disability, group health and life, vacation pay, sick payor any similar
plans or benefits. Brown will be solely responsible for any and all federal or state payroll or other
taxes due to the State of Georgia or the Internal Revenue Service. Brown is responsible for
furnishing his own equipment and transportation as may be needed. Additionally, Brown will
obtain all necessary permits and licenses for himself and any employee or any other individual
he may use to assist him in carrying out this matter. Brown's Services will be performed as an
independent contractor for the Cities as a group only, and he shall not be permitted to perform
any Services independently for any of the Cities as parties to this Agreement.
'--' The parties to this Agreemern reserve the right, in their discretion, to separately retain the
services another consultant for purposes of advancing their specific objectives in the LOST
negotiation andlor in LOST arbitration. The parties agree that each cities' participation in this
.-\greement shall not \vork to prejudice any cities' respective right to retain a separate consultant.
and entr.y into this Agreement S:H1Il not be used against any party hereto as a means or
arguing or suggesting that such party has adopted the findings Brown or is otherw bound by
BrO\'I:'n's iindings.
4.
TERM
This Agreement shall be effective upon its execution and shall continue through the
completion of the Services assigned by the Cities, unless sooner terminated by either party upon
giving seven (7) days' written notice to the other of the party's intent to terminate at an earlier
time. Brov\!J1 shall be paid for all work performed through date of termination.
5.
DOCUMENTS
All notes, memos, forms, reports and other documents prepared by Brown, or prepared
by anyone else at Brown's direction, shall be the property of the Cities. These documents are
<..,confidential to the Cities and Bro\\ll shall not use or disclose to others during the term of this
Agreement or upon the termination or at any time any information concerning such documents.
Additionally, Brown shall not publish, publicize or otherwise advertise the existence of this
, '-greement or the subject matter of this Agreement. Should the Cities become acquainted with
~ny prepared information of Brown, the Cities will not disclose any such information. Reports
and documents prepared by Brown are proprietary and shall not be supplied to other parties
including but not limited to other entities or consultants without the consent of Brown. All of the
obligations in this paragraph shall survive the termination of this Agreement.
6.
ASSIGNMENT
Brown understands that the Cii.ies are relying on the principal, Michael B. Brown, and the
associates identified in his letter of qualification to the Cities to perform the Services in this
Agreement, and the Services may not be assigned without prior approval by the Cities.
7.
NOTICES
Any notices given hereunder shall be in wTiting and shall be sent certified mail return
receipt requested to:
to the Cities:
With a copy to:
1fto Brown:
Wendell K. Willard
Attorney
7840 Roswell Road
Building 300, Suite 330
Sandy Springs, Georgia 30350
Jere Wood, Mayor
City ofRoswell, Georgia
1173 Canton Street
Roswell, Georgia 30075
Kasirn Reed, Mayor
City of Atlanta, Georgia
55 Trinity Avenue, Suite 2500
Atlanta, Georgia 30303
J. Clark Boddie, Mayor
City of Palmetto, Georgia
P. O. Box 190,509 Toombs Street
Palmetto, Georgia 30268
Brown Pelican Consulting, LLC.
Attn: Michael B. Brown
P.O. Box 14314
Savannah, Georgia 31416
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\Vith copy to: Stephen L. Greenberg
Attorney
14 East State Street
Savannah, Georgia 31416
8.
JURISDICTION
This Agreement shall be governed by the laws of the State of Georgia and Brown agrees
that despite Chatham County, Georgia, being its principal location, Fulton Superior Court shall
have jurisdiction of any dispute arising out of this Agreement. This Agreement is the entire
agreement between the parties and no oral representation may be relied upon by either party.
Should any provision of this Agreement be declared unenforceable, same does not affect any
other provision(s) of the Agreement.
9.
SAVE
A SAVE affidavit in form attached hereto shall be executed by a representative of Brown
Pelican Consulting, LLC and a secure and verifiable document shall likewise be provided to the
Cities.
IN WITNESS WHEREOF, the parties have executed this Agreement through their duly
~uthorized representatives, effective the date first above written.
FOR THE CITIES
BROWN PELICAN CONSULTING, LLC
By:
Michael B. Brown
Title:
1.
1.
3.
4.
5.
6.
7.
8.
9.
10.
Il.
12.
13.
14.
APPENDIX 1
MUNICIPALITIES OF FULTON COUNTY
Alpharetta
Atlanta
Chattahoochee Hills
College Park
East Point
Fairburn
Hapeville
Johns Creek
?v1ilton
Mountain Park
Palmetto
Roswell
Sandy Springs
Union City
Co'tl'ncilmember Burt
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THIS RESOLUTION adopted this 19th day of November, 2012.
//""~ ~.
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Councilmem/\ ..'1)k/'"
i iiI( I /
ATTEST:
t//7f1/{d~Y7
Sudie Gordon, City ¢lerk
STA TE OF GEORGIA
~COUNTYOFFULTON RESOLUTION NO. 12-11-237
A RESOLUTION APPOINTING AND AUTHORIZING SPECIAL COUNSEL TO
REPRESENT THE CITY TO OBTAIN A LOCAL OPTION SALES TAX
("L.O.S.T.") DISTRIBUTION CERTIFICATION AS REQUIRED UNDER THE
LAWS OF THE STATE OF GEORGIA; TO AUTHORIZE SAID COUNSEL TO
ASSIST IN THE PREPARATION, PRESENTATION AND LITIGATION OF THE
CITY'S CASE; REPEAL INCONSISTENT PROVISIONS; AND FOR OTHER
PURPOSES.
WIT N E SSE T H:
\VHEREAS, the City of Milton ("City") is a municipal corporation duly
orgamzed and existing under the laws of the State of Georgia, and is charged with
providing public services to its residents; and
WHEREAS, the City wishes to cooperate with its fellow cities in mediation and
litigation and work jointly with and through Special Counsel to achieve a fair distribution
ofL.O.S.T. proceeds in accordance with the L.O.S.T. enactment; and
WHEREAS, the Mayor and City Council in the exercise of their sound judgment
and discretion, after giving thorough thought to all implications involved, and keeping in
mind the public interest and welfare of the citizens of the City, have determined it to be in
the best interest of the citizens of the City, that this Resolution be adopted.
THEREFORE, IT IS NOW RESOLVED BY THE CITY COUNCIL OF
THE CITY OF MILTON, GEORGIA, AS FOLLOWS:
L The City hereby retains Andrew 1. (Andy) Welch,
III, and the law firm of Smith Welch Webb & White ("Special Counsel") to
represent the City jointly with other cities which adopt a like Resolution. Special
Counsel may be asked by the Mayor or by a majority of the City Council to
appear and provide an update on the status of the mediation and litigation to the
City Council as a whole in accordance with the Open Meetings Act.
2. The City hereby authorizes Special Counsel to
acknowledge service on behalf of the City; to represent the City jointly with other
cities to negotiate and secure a L.O.S.T. distribution certificate or litigate for a
judicially-determined L.O.S.T. distribution certification with the County in
accordance with the laws of the State of Georgia; negotiate settlement, determine
litigation strategy, and to prepare, file and condu~t litigation, as needed.
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Representation of City to Special CounseL The City represents that it will pay its
portion of legal fees, expert witness fees, and all other costs and expenses of
litigation incurred by Special Counsel. The City shall pay any fees consistent
with its current LOST share; and, to the extent the City's LOST share is modified
as a result of the present arbitration process, the City shall supplement those fees
paid in accord with its new LOST percentage.
4. Designated Representation of the City. The Mayor, or his/her designee, is hereby
designated and authorized to serve as the Cities designated representative for
L.O.S.T. mediation and litigation and should be the City's point of contract for all
communications between Special Counsel and the City.
5. Special Counsel agrees that the best and final offer pursuant to
O.C.O.A. 48-8-89(d)(4)(B) or non-judicial entry into a L.O.S.T. distribution
certificate with the County shall be subject to and conditioned upon a final
approval by majority vote of the Mayor and City CounciL This agreement
notwithstanding, the City of Milton Reserves its right to elect absentee
municipality status under O.C.O.A. 48-8-89 and Special Counsel shall take no
action that would prejudice the City's right to absentee status unless and until the
City Council approves such action to the action being taken ..
6. Joint Representation and Waiver of Confidentiality. The City acknowledges that
Special Counsel will represent it jointly with other cities which likewise retain
Special Counsel to represent their interest in negotiations and litigation of a
L.O.S.T. Apportionment Agreement and Certification with the County. The City
warrants that its governing body has read the joint-representation letter dated
October 22, 2012 to Milton and attached hereto and incorporated herein as
Exhibit" A" and no conflict of interest exists at this time between the City and any
other of said cities with respect to the joint representation contemplated in this
Resolution. Should a conflict of interest arise, the City agrees to promptly notify
Special Counsel in writing and allow Special Counsel to continue representation
so long as continued representation does not violate the Oeorgia Rules of
Professional Conduct. The City has had the opportunity to discuss the terms of
this Resolution with its attorney of choice and hereby waives its right to
confidentiality with Special Counsel and the other jointly represented Cities with
respect to Special Counsel performing the representation contemplated in this
Resolution. The Mayor is hereby authorized to execute the Acknowledgment of
joint representation which includes a waiver of confidentiality and conflict
identification as contemplated herein.
7. Additional Documents. The City Council authorizes the Mayor to execute any
documents, including those necessary for negotiation, mediation and litigation,
which may be necessary to effectuate this Resolution.
8. Attestation. The City Council does hereby authorize the City Clerk to attest the
signature of the Mayor appearing on this Resolution and any related documents,
to affix the official seal of the City thereto, as necessary, and to place this
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Resolution and an executed copy of any related documents among the official
records of the City for future reference.
9. Severability. To the extent any portion of this Resolution is declared to be
invalid, unenforceable, or nonbinding, that shall not affect the remaining portions
of this Resolution.
10. Repeal of Conflicting Provisions. All City resolutions are hereby repealed to the
extent they are inconsisten~ with this Resolution.
11. Effective Date. This Resolution shall take effect immediately.
THIS RESOLUTION adopted this 19th day of November, 2012.
[SIGNATURES ON FOLLOWING PAGE]
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With copy to: Stephen 1... Greenberg
Attorney
14 East State Street
Savannah. Georgia 31416
8.
JURISDICTION
This Agreement shall be governed by the laws of the State of Georgia and Brown agrees
that despite Chatham County, Geor~being its principal location., Fulton Superior Court shall
have jurisdiction of any dispute arising out of this Agreement. This Agreement is the entire
agreement between the parties and no oral representation may be relied upon by either party.
Should any provision of this Agreement be declared lDlenforceable, same docs not affect any
other provision(s) ofthe Agreement.
9.
SAVE
A SAVE affidavit in form attached hereto shall be executed by a representative of Brown
Pelican Consulting. LLC and a secure and verifiable docwnent shall likewise be provided to the
Cities. .
IN WITNESS WHEREOF, the parties have executed this Agreement through their duly
authorized representatives, effective the date first above written.
BROWN PELICAN CONSULTING, LLC ~~?CCC
By: ' b .. ~
Michael B. Brown
Title: ~