HomeMy WebLinkAboutResolution 5743-06-2023A Resolution
NO. 5743-06-2023
AUTHORIZING THE EMPLOYMENT OF EILAND & BONNIN, P.C., BARON & BUDD,
AND COSSICH, SUMICH, PARSIOLA & TAYLOR AS OUTSIDE LEGAL COUNSEL
TO REPRESENT THE CITY ON A CONTINGENCY FEE BASIS FOR CLAIMS
RELATED TO FIREFIGHTING FOAM PRODUCTS AND/OR OTHER PRODUCTS
CONTAINING PERFLUOROALKYL SUBSTANCES ("PFAS") INCLUDING PFOS
(PERFLUOROOCTANE SULFONIC ACID) AND PFOA (PERFLUOROOCTANIC
ACID), AND RELATED COMPOUNDS
WHEREAS, City of Fort Worth, Texas intends to pursue claims for monetary
damages, declaratory relief, and other legal remedies ("Damages") against
manufacturers, designers, marketers, distributors, formulators, promoters, and/or
sellers of firefighting foam products (known as "aqueous film -forming foam" or
"AFFF") and/or other products containing perfluoroalkyl substances ("PFAS")
including PFOA (perfluorooctane sulfonic acid) and PFOA (perfluorooctanic acid),
and related compounds (collectively, "Defendants") as determined for the cost of
testing, monitoring, remediating and/or treating soil and groundwater contamination
(the "Litigation"); and
WHEREAS, City of Fort Worth, Texas' desired outcome in the Litigation is
to recover from the Defendants Damages owed to City of Fort Worth, Texas for the
possible soil and groundwater contamination by the Defendants' products, in addition
to other relief allowed under the law; and
WHEREAS, the Defendants manufactured, designed, marketed, distributed,
formulated, promoted and or sold firefighting foam and/or other products containing
perfluoroalkyl substances ("PFAS") including PFOA (perfluorooctane sulfonic acid)
and PFOA (perfluorooctanic acid), and related compounds; and
WHEREAS, the Defendants' products have been proven to contaminate soil
and groundwater; and
WHEREAS, City of Fort Worth, Texas has a substantial need for the legal
services of counsel to represent it in the Litigation; and
WHEREAS, City of Fort Worth, Texas requires legal counsel that specialize
in complex litigation and are highly knowledgeable and experienced in the legal
issues surrounding PFAS and AFFF; and
WHEREAS, City of Fort Worth, Texas now desires to enter into a contingent
fee contract ("Contract") for legal services with EILAND & BONNIN, P.C., BARON
& BUDD, and COSSICH, SUMICH, PARSIOLA & TAYLOR ("Counselors") to
represent City of Fort Worth, Texas in the Litigation; and
WHEREAS, Subchapter C of Chapter 2254 of the Texas Government Code
("Chapter 2254") requires that a political subdivision of the State of Texas, including
City of Fort Worth, Texas, may enter into a contingent fee contract for legal services
only after: (i) the governing body of the political subdivision has provided written
notice to the public stating certain provisions enumerated within Chapter 2254; (ii)
the governing body of the political subdivision approved such contract in an open
meeting called, in part or in whole, for the purposes of considering such contract; and
(iii) the governing body of the political subdivision stated in writing certain findings
made by the governing body upon the approval of such contract; and
WHEREAS, before the contingent fee contract for the legal services is
effective and enforceable, City of Fort Worth, Texas must receive approval of the
Contract by the Office of the Attorney General of Texas; and
WHEREAS, City of Fort Worth, Texas has caused notice of this resolution,
this meeting, and certain provisions enumerated within Chapter 2254 to be provided
to the public in accordance with the Texas Open Meetings Act and Chapter 2254; and
WHEREAS, the meeting at which this resolution is being considered in an
open meeting called, in part or in whole, for the purpose of considering: (i) the City's
need for legal counsel to represent it in the Litigation; (ii) terms of the Contract; (iii)
the competence, qualifications, and experience of the Counselors; and (iv) the reasons
that the Contract is in the best interest of City of Fort Worth, Texas and complies
with Chapter 2254; and
WHEREAS, the City Council of City of Fort Worth, Texas hereby finds and
determines that the adoption of this resolution is in the best interests of the residents
of City of Fort Worth, Texas.
NOW, THEREFORE, BE IT RESOLVED BY the City Council for City of
Fort Worth, Texas:
SECTION 1. That the recitals contained in the preamble hereof are hereby
found to be true, and such recitals are hereby made a part of this resolution for all
purposes and are adopted as a part of the judgment and findings of the City Council
for City of Fort Worth, Texas.
SECTION 2. That the City Council for City of Fort Worth, Texas hereby finds
that: (i) there is a substantial need for the legal services to be provided in the
Litigation; (ii) the legal services to be provided in the Litigation cannot adequately
be performed by the attorneys and supporting personnel currently employed by City
of Fort Worth, Texas staff; (iii) the legal services to be provided in the Litigation
cannot reasonably be obtained from attorneys in private practice under a contract
providing only for the payment of hourly fees, without regard to the outcome of the
matter, because of the nature of the Litigation and without imposing an unnecessary
cost and burden on City of Fort Worth, Texas' finances; and (iv) the relationship
between the City or the City Council and the Counselors is not improper and would
not appear improper to a reasonable person.
SECTION 3. That based on the findings by the City Council for City of Fort
Worth, Texas described above, the City Council for City of Fort Worth, Texas hereby
authorizes the City Manager's Office to execute a legal services contract with
EILAND & BONNIN, P.C., BARON & BUDD, and COSSICH, SUMICH, PARSIOLA
& TAYLOR, and any other documents in connection therewith, approved as to form
by the City, effective only upon approval by the Office of the Attorney General of
Texas.
SECTION 4. That it is officially found, determined, and declared that the
meeting at which this resolution is adopted way open to the public and public notice
of the time, place, and subject matter of the public business to be considered at such
meeting, including this resolution, was given, all as required by Chapter 55I as
amended, Texas Government Code.
SECTION 5. That the City will pay the Counselors a contingency fee (which
shall be inclusive of all expenses) in accordance with the rates in Attachment A to
this resolution and contingent upon the recovery, if any, by the City in the Litigation.
SECTION 6. That this Resolution shall take effect immediately from and after
its passage in accordance with the provisions of the City Council and City of Fort
Worth, Texas, and it is accordingly so resolved.
Adopted this 13" day of June, 2023.
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ATTACHMENT A
The fees for legal services provided by the Counselors in connection with the
Litigation are contingent upon the recovery by City of Fort Worth, Texas of Damages
in the Litigation and will be paid out of such recover, if any, as follows:
If the Counselors obtain a recovery and collection on behalf of City of Fort Worth,
Texas the Counselors will receive attorneys' fees and expenses in the amount of
Thirty -Five percent (35%) of the gross recovery
The Counselors will advance all costs associated with the Litigation. Any expenses
shall be recovered as part of the 35% fee and not reimbursed further by the City.
City of Fort Worth, Texas
Mayor and Council Communication
DATE: 06/13/23 M&C FILE NUMBER: M&C 23-0445
LOG NAME: 12EILAND & BONNIN
SUBJECT
(ALL) Adopt a Resolution Authorizing the City Attorney to Retain the Law Firms of EILAND & BONNIN, P.C., BARON & BUDD, and COSSICH,
SUMICH, PARSIOLA & TAYLOR as Outside Legal Counsel to Represent the City on a Contingent Fee Basis for Claims Related to Firefighting
Foam Products and/or Other Products Containing Perfluoroalkyl Substances Including Perfluorooctane Sulfonic Acid and Perfluorooctanic Acid,
and Related Compounds
RECOMMENDATION:
It is recommended that the City Council adopt the attached resolution approving the retention of EILAND & BONNIN, P.C., BARON & BUDD, and
COSSICH, SUMICH, PARSIOLA & TAYLOR as outside legal counsel to assist and represent the City of Fort Worth in matters related to claims for
monetary damages, declaratory relief, and other legal remedies against manufacturers, designers, marketers, distributors, formulators, promoters,
and/or sellers of firefighting foam products and/or other products containing perfluoroalkyl substances including perfluorooctane sulfonic acid and
perfluorooctanic acid, and related compounds.
DISCUSSION:
The City intends to pursue claims for monetary damages, declaratory relief, and other legal remedies against manufacturers, designers,
marketers, distributors, formulators, promoters, and/or sellers of firefighting foam products, known as aqueous film -forming foam and/or other
products containing perfluoroalkyl substances including perfluorooctane sulfonic acid and perfluorooctanic acid, and related compounds as
determined for testing, monitoring, remediating and/or treating soil and groundwater contamination. The City's desired outcome in pursuing the
Litigation is to recover from the Defendants damages owed to the City for the cost and expense of testing, monitoring, remediating, and/or treating
soil and groundwater contamination, in addition to other relief allowed for the costs and expense of testing, monitoring, remediating and/or treating
soil and groundwater contamination under the law. Therefore, there is substantial need for legal services.
The City wishes to engage the following three law firms: EILAND & BONNIN, P.C., BARON & BUDD, and COSSICH, SUMICH, PARSIOLA &
TAYLOR as CO -LEAD COUNSEL. The relationship with the three Counselors would span from the time of engaging them in the Litigation until it
is completed. The City has no prior relationship with the Counselors. These lawyers have the experience necessary to handle such litigation as
this. Payment will be on a contingency -fee basis and litigation expenses by Counselors will be deducted from settlement only upon recovery.
A Form 1295 is not required because: This M&C does not request approval of a contract with a business entity.
FISCAL INFORMATION / CERTIFICATION:
The Director of Finance certifies that approval of this recommendation will have no material effect on City funds.
Submitted for City Manager's Office by: ALL ACMs 6122
Originating Business Unit Head: Leann Guzman 8973
Additional Information Contact: Leann Guzman 8973
Expedited