HomeMy WebLinkAboutResolutions 22-06-604 - 06/20/2022 - L.O.S.T with Representation LetterRESOLUTION NO. Z2-D(v-%0q
' A RESOLUTION APPOINTING AND AUTHORIZING SPECIAL COUNSEL TO
REPRESENT THE CITY OF MILTON TO NEGOTIATE 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, NEGOTIATION,
MEDIATION, OR ARBITRATION OF THE CITY'S L.O.S.T.; REPEAL
INCONSISTENT PROVISIONS; AND FOR OTHER PURPOSES.
WITNESSETH:
WHEREAS, the City of Milton 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 of Alpharetta,
Chattahoochee Hills, College Park, East Point, Fairborn, Hapeville, Johns Creek, Milton,
Mountain Park, Palmetto, Roswell, Sandy Springs, South Fulton, and Union City in
mediation and litigation and work jointly with and through Special Counsel to achieve a
fair distribution of L.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:
1. Retention of Special Counsel. The City hereby retains Andrew J. (Andy) Welch,
III, Brandon Palmer, and Avenel Jackson of the law firm of Smith Welch Webb
& White ("Special Counsel") to represent the City jointly with other cities.
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, mediate or arbitrate, and secure a L.O.S.T. distribution
certificate with the County in accordance with the laws of the State of Georgia.
3. Scope of Representation Limited. The City acknowledges that the scope of the
representation and the corresponding attorney -client relationship shall extend to
obtaining a L.O.S.T. distribution certificate with the County. Special Counsel
shall not be deemed to represent the City for any other purpose unless or until a
' separate engagement agreement is entered into.
(Doc: 03064350.DCC)
I
4. Representation of City to Special Counsel. The Cityrepresents that it will pay its
pro rata portion (as identified in the correspondence retention letter) of legal fees,
expert witness fees, and all other costs and expenses incurred by Special Counsel.
5. Designated Representation of the City. The Mayor, or his/her designee, is hereby
designated and authorized to serve as the City's designated representative for
L.O.S.T. negotiations, mediation or arbitration and will be the City's point of
contract for all communications between Special Counsel and the City, until such
time as such authority is rescinded by the City.
6. Authority to Approve LOST Certificate. Approving a L.O.S.T. distribution
certificate with the County requires approval by the majority vote of the Mayor
and City Council unless the City is treated as an absent municipality.
7. 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, mediation and
arbitration (and litigation if necessary) of a L.O.S.T. distribution certificate with
the County. The City warrants that its governing body has read and by this
Resolution approved the letter dated June 7, 2022, 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 and said letter with its attorney
of choice and hereby waives its right to confidentiality with Special Counsel and
the other jointly represented Cities with respect to only Special Counsel
performing the representation contemplated in this Resolution. The Mayor is
hereby authorized to execute the Acknowledgment of joint representation.
8. Additional Documents. The City Council authorizes the Mayor to execute any
documents, including those necessary for negotiation, mediation, arbitration (and
litigation), which may be necessary to effectuate this Resolution, but the Mayor
shall not be authorized to unilaterally executed a L.O.S.T. certificate.
9. 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
Resolution and an executed copy of any related documents among the official
records of the City for future reference.
' 10. 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.
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' 11. Repeal of Conflicting Provisions. All City resolutions are hereby repealed to the
extent they are inconsistent with this Resolution.
12. Effective Date. This Resolution shall take effect immediately.
THIS RESOLUTION adopted this 4 6f: day of �) U N I✓ 12022.
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June 14, 2022
Mayor Peyton Jamison
City of Milton
2006 Heritage Walk
Milton, Georgia 30004
RE: 2022 Local Option Sales Tax (L.O.S.T.) — Fulton County
Representation of Special Counsel
Dear Mayor Jamison:
The Cities of Alpharetta, Chattahoochee Hills, College Park, East Point, Fairburn,
Hapeville, Johns Creek, Milton, Mountain Park, Palmetto, Roswell, Sandy Springs, South
Fulton and Union City exclusive of Atlanta, (hereinafter referred to as "Cities") all of
Fulton County, Georgia, have requested that this firm represent them all collectively as
Special Counsel in the above referenced Local Option Sales Tax ("L.O.S.T.") negotiations,
mediation and/or arbitration ("Negotiations"). Our engagement as Special Council
presents certain ethical issues requiring your understanding and consent. Set forth below
are the proposed terms for our joint representation of you and the cities in connection with
the Negotiations.
I. Introduction
We appreciate that you would like us to represent the City of Milton ("City") as
Special Counsel. Although we do not believe that representation of you in the Negotiations
precludes us from representing any other City of Fulton County, we must take steps
required by the Georgia Rules of Professional Conduct to address any potential conflict
that may arise between you and other Cities as a result of the transaction. The potential
problem that lies here is that we have been retained as Special Counsel to represent you
and other Cities in these Negotiations. As you can see, there are multiple parties being
represented by Special Counsel in this matter.
Additionally, our firm handles a wide variety of matters representing diverse clients
across the state. As a result, there may be instances where our representation of another
client may be adverse to the City, such as in the context of eminent domain, zoning, code
enforcement, employment, workers compensation or personal injury. As a result, this letter
shall discuss the material risks and reasonable alternatives associated with engaging this
{Doc: 03064269.DOCX}
Ernest M Smith ()911-1992)
W W.W
Grant E McBride
A.]. Welch, Jr. (1944-2018)
Bianca K Davis
John P. Webb, PC
Miranda N Hanley
William A White, PC
Casey C, Crumbley (SC & GA)
Andrew J. Welch, 111, PC (NY & GA)
J. Byrd Garland
SMITH WELCH
L. Scott Mayfield
ASSOCIATES
Marc A. Avidano (FL & GA)
W E B B& W H I T E�r
Brandon F. Palma
David M. Waldroup
M. Chase Collum
Andrew J. Gebhardt
Brooke A White
R. Brian Strickland
A T T O K N E Y S A T LAW
Amy M. Fletcher
Elizabeth P. O'Neal
Averiel D Jackson
Megan Murren Rittle (GA & AL)
Jeremy A. Trimble (FL & GA)
Lajuana C. Ransaw
Warren M. Tillery
2200 KEYS FERRY COURT • P.O. BOX 10 • MCDONOUGH, GA 30253
OF COUNSEL
Tim N. Shepherd
Orion G. Webb
Telephone: 770-957-3937 • Facsimile: 770-957-9165
www.smithwelchlaw.com
June 14, 2022
Mayor Peyton Jamison
City of Milton
2006 Heritage Walk
Milton, Georgia 30004
RE: 2022 Local Option Sales Tax (L.O.S.T.) — Fulton County
Representation of Special Counsel
Dear Mayor Jamison:
The Cities of Alpharetta, Chattahoochee Hills, College Park, East Point, Fairburn,
Hapeville, Johns Creek, Milton, Mountain Park, Palmetto, Roswell, Sandy Springs, South
Fulton and Union City exclusive of Atlanta, (hereinafter referred to as "Cities") all of
Fulton County, Georgia, have requested that this firm represent them all collectively as
Special Counsel in the above referenced Local Option Sales Tax ("L.O.S.T.") negotiations,
mediation and/or arbitration ("Negotiations"). Our engagement as Special Council
presents certain ethical issues requiring your understanding and consent. Set forth below
are the proposed terms for our joint representation of you and the cities in connection with
the Negotiations.
I. Introduction
We appreciate that you would like us to represent the City of Milton ("City") as
Special Counsel. Although we do not believe that representation of you in the Negotiations
precludes us from representing any other City of Fulton County, we must take steps
required by the Georgia Rules of Professional Conduct to address any potential conflict
that may arise between you and other Cities as a result of the transaction. The potential
problem that lies here is that we have been retained as Special Counsel to represent you
and other Cities in these Negotiations. As you can see, there are multiple parties being
represented by Special Counsel in this matter.
Additionally, our firm handles a wide variety of matters representing diverse clients
across the state. As a result, there may be instances where our representation of another
client may be adverse to the City, such as in the context of eminent domain, zoning, code
enforcement, employment, workers compensation or personal injury. As a result, this letter
shall discuss the material risks and reasonable alternatives associated with engaging this
{Doc: 03064269.DOCX}
firm in the limited scope of L.O.S.T. Negotiations while simultaneously waiving conflicts
of interest for other, unrelated matters.
At the outset, you should know that, in analyzing whether it is appropriate to
represent more than one City, the test is not whether there is a "conflict of interests."
Although we all frequently use that term, a more detailed analysis is appropriate when
considering joint representation of multiple parties.
II. The Applicable Rules of Conduct.
The Georgia Rules of Professional Conduct, Rule 1.7, utilize a test that involves
the question of whether the professional judgment of an attorney is likely to be adversely
affected, which involves four steps for compliance. First, we must consult with potential
Cities client's representatives concerning this issue after you all have read this letter.
Second, all Cities must receive written disclosure of the material risks of the representation,
which are addressed in this letter. Third, all Cities must receive an opportunity to consult
with independent counsel. (Please let this letter serve as your notice that you may discuss
this issue with another lawyer of your choosing). Fourth, all Cities must consent to this
joint representation. (The consent must be given by action of the governing body of your
City.)
III. Full Disclosure
In order to fully comply with Rule 1.7(b), we must disclose the material risks
involved in our representation. This will be divided into two sections. The first is with
respect to our joint representation of you and every other city in Fulton County (other than
Atlanta) in the context of these L.O.S.T. Negotiations. The second will be with respect to
other instances beyond the limited scope of L.O.S.T. Negotiations in which our firm may
represent clients with interests adverse to the City.
A. Material risks for joint representation in L.O.S.T.
First, with respect to the attorney -City privilege, we advise you that any information
disclosed by jointly represented Cities to us in connection with this engagement will not
be protected by the privilege in a subsequent legal proceeding asserted by or against you
involving any jointly represented City. Moreover, we believe we cannot effectively
represent you if information disclosed to us by any jointly represented City must be
preserved by us in confidence from the other. If we are to represent all parties, it will only
be on the express understanding that each jointly represented City has waived the attorney -
City privilege to the extent, but only to the extent, that the privilege might otherwise require
us to preserve in confidence information disclosed by one jointly -represented City to us
from another in these Negotiations.
The second material risk would be that any one of the parties could disclose
information learned of the other parties in the course of this representation to Fulton County
or some third party. This may be resolved through the execution of a confidentiality
agreement. By execution of this letter of understanding and your adoption of the related
Resolution, you are agreeing to maintain all information obtained in the course of this
representation in the strictest of confidence, and not to disclose such information to any
third party without the prior written consent of the authorized representative of each jointly -
represented City.
{Doc: 03064269.DOCX}
Another material risk would be these Negotiations may result in terms that are
more or less advantageous to City as compared to any other city. The risk is negligible
because the L.O.S.T. statute establishes a statutory minimum to be guaranteed for each city
which opts to not participate (i.e. an "absent qualified municipality") in the Negotiations.
See O.C.G.A. § 48-8-89(b). A conflict does not exist if the Cities agree that no city will
be required to accept a percentage of L.O.S.T. proceeds less than its absent municipal share
or the governing body for a City votes to waive such right to such a minimum distribution.
By executing the Acknowledgment enclosed and approving the associated Resolution, City
accepts the above agreement and understanding of waiver. If said understanding and
agreement is not acceptable, then a conflict may arise which may prevent our continued
representation of all Cities. The potential for conflict is also minimized because a best and
final offer should be approved by your governing body.
By signing the Acknowledgement attached hereto, the City warrants that no conflict
of interest exists at this time between it and any other city with respect to the joint
representation contemplated in this letter. Should a conflict of interest arise, you agree 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; and otherwise consent to Special Counsel's withdrawal.
Furthermore, should Special Counsel have to withdraw from representation of the Cities
jointly, by signing the Acknowledgement attached hereto, the City agrees to waive any
objection to Special Counsel's continued representation of just the City of Hapeville in
these Negotiations and any other matter because Special Counsel serves as the City of
Hapeville's general counsel.
You should be aware that Special Counsel will work diligently to achieve the
respective goals of the group and obtain a L.O.S.T. distribution certificate with Fulton
County. Furthermore, it is the understanding of the parties that the legal fees and costs of
mediation and litigation incurred in this matter shall be billed to the City based upon an
apportionment of fees and costs among the Cities based on their respective populations as
a percentage of the total population for all Cities as derived from the 2020 decennial census,
as follows:
CITY
POPULATION %
Alpharetta
10.841
Chattahoochee Hills
0.486
College Park
2.134
East Point
6.318
Fairburn
2.715
Ha eville
1.079
Johns Creek
13.581
Milton
6.802
Mountain Park
0.094
Palmetto
0.743
Roswell
15.291
Sand S rin s
17.802
South Fulton
17.696
Union City
4.419
(Doc: 03064269.DOCX)
B. Material risks of waiving conflicts beyond the scope of our firm's
representation of the City in L.O.S.T.
There may be instances in which our firm represents clients in connection with
eminent domain, zoning, code enforcement, employment disputes, workers compensation,
personal injury, etc... ("Other Actions"), adverse to the City. As a result, there is the
potential for this firm to represent the City in the limited context of this L.O.S.T.
Negotiation while simultaneously representing other clients against the City in active
litigation.
The material risk of this are minimal because the scope of our representation is
limited to representing the City in L.O.S.T. As such, there would be no cross-over into
Other Actions. With respect to information gained through the limited scope of the
attorney-client relationship between this firm and the City in L.O.S.T. Negotiations, the
Georgia Rules of Professional Conduct do not allow lawyers in this firm to use such
information to the disadvantage of the City. To provide adequate assurances to the City
regarding our sincerity in complying with Rule 1.6, our firm proposes to restrict access to
the electronic file and other documents to only those lawyers who are actively working on
the limited scope of the representation of the City in these Negotiations.
Even so, there is the potential for one material risk to be a lawyer representing the
City in one context belonging to the same firm as another lawyer representing a different
client against the City in another context. While the specter of this may appear strange, we
believe that such representation is permitted so long as the matters are substantially
unrelated. The alternative, however, is that this firm will be unable to represent the City in
the limited context of the L.O.S.T. Negotiations, or in any other matter.
By signing the Acknowledgment attached hereto, the City warrants that it will not
raise a conflict of interest by virtue of lawyers in Special Counsel's firm representing other
clients in different subject matters than L.O.S.T. Negotiation against the City on the basis
of Special Counsel's firm representing the City in these Negotiations. The City also agrees
that it will sign any waiver of a conflict of interest reasonably requested by Special
Counsel's firm for matters outside the scope of this limited engagement for L.O.S.T.
Negotiations, provided that Special Counsel's firm can demonstrate that such successive
representation against the City in other matters complies with the Georgia Rules of
Professional Conduct regarding the availability of a waiver.
IV. Fees.
City agrees to pay Special Counsel for representation of City at the following rates:
Position Rate
Attorneys $350 per hour
Legal Asst./Parale al $135 perhour
City agrees to pay any and all expenses incurred by Special Counsel or his
representative on City's behalf as the same accrue, including, but not limited to, court costs,
official fees, depositions and investigations at percentage of the total costs and fees
incurred, which will be submitted to Special Counsel within fourteen (14) days of receipt
of same. The City agrees to pay five percent (5%) of all charges as an administrative fee,
which includes but is not limited to copying fees, fax fees, postage, etc.
(Doc: 03064269.DOCX)
Special Counsel agrees to maintain complete and accurate records of time spent in
the representation of City and to send City regular periodic billings, describing the services
rendered by Special Counsel on City's behalf during the period following the last such
billing and showing the amounts earned as fees.
Special Counsel shall bill City approximately once a month. City agrees to pay all
sums due and owing for legal fees and expenses within thirty (30) days of the receipt of
each statement for services rendered with a balance due. In the event City fails or refuses
to pay amounts due and owing, and fails to make payment arrangements satisfactory to
Special Counsel within ten (10) days of the receipt by City of any request by Special
Counsel to pay an overdue bill for services or expenses, City consents to the withdrawal
by Special Counsel as counsel for City upon notice as provided in Uniform Superior Court
Rule 4.3. In the event it is necessary to pursue legal means to obtain payment for
professional services or expenses, City agrees to pay the amounts owed plus all reasonable
attorney fees and all costs incurred to collect.
In the event City maintains a balance which is more than thirty (30) days past due,
Special Counsel shall have the right to charge interest on that past due balance at the rate
of one and one-half (1.5) percent per month or eighteen (18%) percent per annum until
paid.
If the Court should award City fees and expenses of litigation to be paid by the
adverse party for Special Counsel's representation of City, then that award, when paid over
to Special Counsel, will be applied to the total fee earned by Special Counsel and the
expenses incurred. City is responsible for the payment of any deficiency between the total
fees and the amount of the award. If the award exceeds the total of the fees and expenses,
plus any additional amounts previously paid to Special Counsel by City, City shall be
entitled to a refund of the excess.
City understands that Special Counsel has not represented nor guaranteed that the
fees earned by Special Counsel in representing City are limited in amount, except as to the
hourly rates set forth in this Contract. City understands that the total fee to be earned
pursuant to this Contract will be calculated by multiplying the total number of hours or
fraction thereof spent by Special Counsel by the appropriate rates as set forth above.
V. Conclusion
So that we can continue this engagement, please acknowledge your agreement with
the terms of this letter on the Acknowledgement form attached to this letter and return it to
me at your earliest convenience. I look forward to working with you on this matter.
With kindest regards,
S ial Counsel
SM H�WE1.C1 EB & WIIITE
Andrew elch III
Enclosure
(Doc: 03064269.DOCX }
ACKNOWLEDGMENT
The governing body for the City of Milton, (hereinafter collectively the "City") has
reviewed the letter regarding joint representation dated June 14, 2022, and acknowledges
that the City has been given an opportunity to ask any questions to its satisfaction and to
hire its own lawyer to represent it in these Negotiations. The City realizes that there are
areas where its interests and objectives may differ from others in these Negotiations, and
that there may be areas of potential conflicts of interest in the joint representation of it and
other cities in these Negotiations. After careful consideration, the City requests that Smith
Welch Webb & White (Special Counsel) represent it jointly and in accordance with the
above letter and the associated Resolution retaining Special Counsel. The City also
understands and agrees that communications and information that you receive from us
relating to this matter are not privileged as to the cities jointly -represented by Special
Counsel in these Negotiations, and agrees to hold the communications and information it
obtains from such other cities concerning these Negotiations in the strictest of confidence.
Furthermore, should Special Counsel have to withdraw from representation of the Cities
jointly, by signing the Acknowledgement attached hereto, the City agrees to waive any
objection to Special Counsel's continued representation of just the City of Hapeville in
these Negotiations and any other matter because Special Counsel serves as the City of
Hapeville's general counsel. Finally, the City agrees that it is being represented by Special
Counsel in the limited context of L.O.S.T., and that this limited representation does not
create a conflict of interest by which lawyers in Special Counsel's firm will be prevented
from representing other clients against the City in unrelated matters, such as eminent
domain, code enforcement, zoning, employment, workers compensation or personal injury.
The City also agrees to execute any waiver of a potential conflict of interest created by
such representation in other matters as lawyers in Special Counsel's firm may reasonably
request, provided that those lawyers can demonstrate compliance with the Georgia Rules
of Professional Conduct regarding the availability of waiver.
r
b
Done this day of at—L I a 32022.
Peyton J on, Mayor
Attest:
ministra r
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