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HomeMy WebLinkAboutResolution #4061 - engagement letter with arent fox RESOLUTION N0.4061 A RESOLUTION APPROVING AN ENGAGEMENT LETTER WITH ARENT FOX LLP AND THE CITY OF CANTON AND DIRECTING THE MAYOR TO EXECUTE AND DELIVER SAID ENGAGEMENT LETTER ON BEHALF OF THE CITY OF CANTON,ILLINOIS. WHEREAS, the Public Safety & Traffic Committee of the City of Canton has determined that it is necessary and in the best interests of the City of Canton to enter into an letter of engagement with Arent Fox LLP, as set forth in Exhibit "A" attached hereto and incorporated herein for legal services regarding Fifth Amendment taking against the Federal government for the taking of City property related to the railway; and WHEREAS,the City Council of the City of Canton has made a similar determination. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF CANTON,ILLINOIS,AS FOLLOWS: 1. That the Engagement Letter attached hereto and incorporated herein as Exhibit "A" is hereby approved by the Canton City Council. 2. That the Mayor of the City of Canton, Illinois is hereby authorized and directed to execute said Engagement Letter on behalf of the City of Canton. 3. That this Resolution shall be in full force and effect immediately upon its passage by the City Council of the City of Canton, Illinois and approval by the Mayor thereof. PASSED by the City Council of the City of Canton, Illinois at a regular meeting this 6`" day of May 2014 upon a roll call vote as follows: AYES: Aldermen West, Putrich,Jim Nelson, Pickel,Justin Nelson, Ellis, Lovell NAYS: ABSENT: Alderman Pasley APPROVED: Jeffrey A. ritz, ayor AT ST: � �, - �� � 'ana Pavle - ock, City Clerk � A re n t Fox Arent Fox LLP/Attorneys at Law Washington, DC/New York,NY/Los Angeles,CA www.arentfox.com January 29, 2014 Mark F. (Thor)Hearne,II Partner Name 314.296.4000 202.857.6395 rnx thor@arentfox.com Address Re: Engagement Letter Re Fifth Amendment Takings Case Against the Federal Government for the Taking of Your Property Dear • You recently spoke with us regarding a claim that you may have for the taking of your property by the federal government. Based on applicable Illinois law and our current understanding of the easement that the railroad obtained across your land, we believe you may have a claim for compensation from the federal government for the taking of your property. As such, you have authorized us to make a claim on your behalf for the "just compensation" owed to you pursuant to the Fifth Amendment of the United States Constitution. This letter sets forth the terms on which Arent Fox LLP has agreed to provide legal services to you and any similarly situated property owners who may later join this case. Specifically, we will represent you (and any other property owners that join this takings claim) in presenting your claim against the United States government in the U.S. Court of Federal Claims in Washington D.C. and on all matters related to this action, including the research and preparation of the litigation and investigation of real estate title and property value. This case is filed against the United States for the taking of your and other property owners' land when the federal Surface Transportation Board ("STB") issued a Notice of Interim Trail Use ("NITU") authorizing the conversion of the abandoned BNSF Railway Company (`BNSF") right of way between Farmington and Dunfermline into an easement for an interim public trail and possible restoration for future railroad use. In the course of this representation we will be the counsel of record for you and for other similarly situated property owners. In the course of our representation, we may need to use other resources of our�rm Arent Fox LLP (the "Firm") and the professional services of other attorneys and paralegals with the Firm as well as other professionals, appraisers and experts. AFDOCS/10688520.1 1717 K Street,NW 1675 Broadway 555 West Fifth Street,48th Floor Washington,DC 20036-5342 New York,NY 10019-5820 Los Angeles,CA 90013-1065 T 202.857.6000 F 202.857.6395 T 212.484.3900 F 212.484.3990 T 213.629.7400 F 213.629.�401 A re n t Fox Page 2 The professional fees and expenses will be paid according to the understanding outlined below and any potential conflict of interest will be defined and resolved as is also noted below. 1. Identity of Client: Scope of Re�resentation As I have explained to you in our conversation, our internal policies require us to provide you with a written statement of the terms on which you have engaged us and on which we have agreed to provide legal services to you. Initially, we have been engaged to represent you in connection with a Fifth Amendment takings claim against the federal government to be filed in the United States Court of Federal Claims. Our engagement includes any services in connection with this matter which we may have undertaken prior to the date of this letter. The scope of our engagement under this letter may be enlarged from time to time as you ask us to perform additional services and we agree to perform such additional services. No additional written agreement will be required to document these periodic changes. The client, for purposes of this representation (and any additional services provided in the course of this representation) will be you as the owner of that real estate subject to the rail-to- trail conversion. The client will also be all those similarly situated property owners who may join this case as individual property owners. This letter confirms that you have engaged the Firm to advise and represent you in connection with the claim for compensation for that property interest taken (and any damages suffered) when the STB issued a NITU affecting the BNSF right-of-way and when that right-of- way was abandoned and converted to trail use by reason of the federal National Trail System Act and/or action or decision of the STB or other entities acting in reliance upon this federal legislation or action of the STB. This representation includes the claim that we will file on your behalf in the United States Court of Federal Claims and all related issues including the research related to determining title to and the value of the real estate involved in the claim. If you request and we agree to provide services with respect to additional and related matters, the terms of this letter will apply to those additional services unless superseded by another written agreement between us. 2. Fees and Ex�enses The Firm has agreed to represent you and the other property owners that join this action on a contingency fee basis. This means that if we are not successful in obtaining a judgment or award from the government there will be no cost to you for the Firm's professional services. If AFDOCS/10688520.1 � A re n t Fox Page 3 we are successful, we will receive an attorney fee that is the greater of either: (a) one-third of the "Total Award"received by all property owners; or, (b) the statutory attorney fee determined by the Court (or agreed to by settlement with the Justice Department) and paid by the federal government consistent with federal statute. The "Total Award" upon which the contingent fee is based includes the damage award for the value of the property taken, all interest awarded upon this amount, and any award of a statutory attorney fee. If your case is appealed to the United States Court of Appeals for the Federal Circuit, our fee will be forty-percent of the Total Award. We charge for legal services on the basis of the time devoted to your matters by our professional staff in performing the services. These rates may be adjusted from time to time, typically on an annual basis. I anticipate that most of the work on the initial matters for you will be performed by Debra Albin-Riley, Steven Bledsoe, Lindsay Brinton, Steven Haskins, Meghan Largent, and me. The Firm will also be entitled to receive reimbursement of any advanced costs or expenses that the Firm pays in the course of this representation. We anticipate that some of these advanced costs will be reimbursed by the federal government if we are successful. These advanced costs reimbursed by the federal government are not part of our"Total Award." Any unreimbursed expenses will be deducted from the award of statutory fees. In the event the Court awards a single sum of statutory fees and expenses, we will first deduct our expenses and then credit you with the remaining award of statutory fees. The matter in which we will be representing you is one in which it is contemplated that if a judgment is entered against the U.S. Government, you will be entitled to be reimbursed for your attorneys' fees, expenses, and other professional fees pursuant to federal statute. To the extent that you receive such an award of attorneys' fees, such award will be included as part of the "Total Award." My statutory professional fee (and that of other lawyers and paralegals that I may ask to assist me in this representation) are based on the amount of time spent by myself and the other lawyers and paralegals and support staff on the client's behalf. Subject to court approval, the professional fees for each lawyer and paralegal will be equal to the reasonable hourly rate approved by the federal court for Washington D.C. litigation in the case Laffey v. Northwest Airlines adjusted annually for inflation as of the date the statutory fee is actually paid, as approved by the Court in Salazar v. District of Columbia, 123 F.Supp.2d 8 (D.D.C.2000). The hourly rate will be that rate in effect at the time the statutory fees are actually paid not the rate in effect when the professional services are rendered and the historic Laffey rate will be adjusted annually based upon the federal Bureau of Labor Index for Legal Services in Washington, D.C. AFDOCS/10688520.1 � A re n t Fox Page 4 The obligation of you to pay professional fees is subject to the following contingency. Should vou not receive a jud�ment entered a ainst the U.S. Government for a findin� of liabili� for the takin� of vour property (or a settlement of your claim reached with the Justice Department), vou will not be obli at� ed to pay any fees nor are you obligated to reimburse the Firm for any advanced ex enses aid on your behalf. This contingent fee agreement for payment of an attorney fee that is the greater of one- third of the "Total Award" (as defined above) or the statutory attorney fee is in recognition of the fact that the hourly statutory fee alone would not fully compensate the Firm for our work on behalf of you and any other property owners who may choose to join this case. Specifically, the hourly rate for my professional services is established for matters in which the payment of the fees is not subject to the risk of a contingent provision. Additionally, typical hourly fee matters provide that the fees will be paid as accrued, on a regular basis, typically every month. Further, the Firm will be paying significant expenses on your behalf in order to bring this action. These advanced expenses are subject to the risk that there will be no recovery and that, if a recovery is awarded, the Firm may not be reimbursed for these expenses until sometime in the future. 3. Payment of Costs and Miscellaneous Terms Additionally, it is understood and agreed that you and the other property owners shall be responsible for payment of the actual expenses of this litigation, including (but not limited to) the following: costs for obtaining copies of documents and transcripts, expert witness fees (including any appraiser fees) for appearing at trial, deposition, or in consultation with us; court filing fees; deposition costs; photographs; out-of-pocket expenses by attorneys or paralegals; travel expenses; investigation expenses; and any other actual out of pocket expenses incurred pursuant to this representation. In addition, you will be responsible to pay our customary charges for various services such as toll calls, facsimile, central word processing, LEXIS/WESTLAW and other computer database uses, duplicating, messengers, secretarial overtime, and transcripts, as applicable. This obligation to reimburse the Firm for anv advanced exaenses is contingent uaon a successful iudgment or settlement against the United States. And, as noted above, we anticipate that—if we are successful—the government will pay these expenses. 4. Staffin� Although I am the legal counsel primarily responsible for this engagement, various portions of the wark may be delegated to other partners of the Firm, associates, staff, and of counsel lawyers, and paralegals, or legal counsel with other law firms as may be necessary and appropriate under the circumstances. AFDOCS/10688520.1 � A re n t Fox Page 5 5. Conflicts of Interest The Firm will not represent any other client in any matter that is the same as or substantially related to this claim in which we are representing you if such other client's interest is directly or materially adverse to your interest. Further, the Firm will not use any information relating to our representation of you except as permitted by applicable rules of professional conduct. Except as provided in the preceding two sentences, the Firm will have the right to continue to represent or to undertake to represent existing or new clients in matters in which the interests of those clients are adverse to your interests, including litigation, transactional and other dealings in which you are a party or are otherwise interested. Parties who are adverse to you in matters in which we represent you may, from time to time, seek to retain us to represent them in unrelated matters. We will have the right to represent any such party so long as the matter in which we represent it is not substantially related to any matter in which we represent you and we believe that the representation of that party will not adversely affect our relationship with you. Should you have any questions about these terms or other aspects of my representation of you in this matter, please let me know. We look forward to working with you in this matter and pursuing, we hope, a successful result. In addition to my of�ce number (314-296-4000), you can also directly contact my associate, Meghan Largent, at 314-296-4003 or meghan.largent @ arentfox.com. If you have any questions about this letter, please do not hesitate to call to discuss them before countersigning this letter. If you do wish to proceed, please sign the enclosed copy of this letter and return it to me in the self-addressed stamped envelope or to 112 S. Hanlev, Suite 200, Clavton,Missouri. 63105 to confirm your agreement to the terms of our engagement. We look forward to working with you. AFDOCS/10688520.1 � Arent Fox Page 6 Very truly yours, Arent Fox LLP Mark F. (Thor) Hearne, II, Partner TH/dsl Agreed: BY� ,�� v�i��.� .�'�°-.�� Signa ure Print name By: Signature Print name Property address: AFDOCS/10688520.1 � , , . Arent Fox Arent Fox LLP/Attorneys at Law Washington,DC/New York, NY/Los Angeles, CA www.arentfox.com May 21, 2014 Meghan S. Largent Associate City of Canton 314296.4003�iaECT 202.857.6395 Fnx c/o Mayor Jeffrey A. Fritz meghan.largent@azentfox.com 2 North Main Canton, IL 61520 Reference No.035220.00001 Re: Fifth Amendment Takings Case Against the Federal Government for the Taking of Your Property Dear Mayor Fritz: Thank you for engaging us to represent you in filing your claim for compensation from the federal government for the taking of your property. Enclosed is a copy of your signed engagement letter for your records. At this point, we will now proceed with filing your claim for compensation. The first step will be to file a complaint in the U.S. Court of Federal Claims. This is the means by which we present your claim for compensation. We are currently in the process of collecting your deeds, title work, and real estate tax information. This will help us prove that you owned the subject property on the date of taking, May 24, 2013. If you have any of this information easily accessible, it would be very helpful if you could provide us with a copy. Specifically, we are interested in the original deed or title by which you acquired your property, proof of tax payments in 2012 and 2013 (if available) showing you owned the property at that time, as well as any surveys you have of the property. And, if you have any appraisals prepared for the property around May 24, 2013, that would be helpful as well. We will continue to keep you updated with any developments. In the meantime, please feel free to contact me or my paralegal, Alexandrea Barney, at anytime. Ms. Barney's direct number is 314.296.4006 and her email is barney.alexandrea@arentfox.com. AFDOCS/11003409.1 1717 K Street,NW 1675 Broadway 555 West Fifth Street,48th Floor Washington,DC 20036-5342 New York,NY 10019-5820 Los Angeles,CA 90013-1065 T 202.857 6000 F 202.857 6395 T 212 484 3900 F 212.484 3990 T 213 629J400 F 213 629 7401 . > -. . Arent Fox City of Canton c/o Mayor Jeffrey A. Fritz Re: Fulton County, IL Trails Act May 21, 2014 Page 2 Very truly yours, Arent Fox LLP '��,��., �.,�-` � Meghan S. Largent MSL/dl Enclosure: AFDOC S/11003409.1