HomeMy WebLinkAboutLB 2. Bachara Amended.Restated New Request . ci.• I )1.1- GRADY H. WILLIAMS JR.., LL.M.
ATTORNEYS AT LAW, P.A.
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September 8, 2023
Office of the Attorney General, Executive Staff
PL-01 The Capitol
Tallahassee, FL 32399-1050
Re: Clay County Utility Authority(the"Agency"), Submission of Amended and
Restated Request for Attorney General Approval of Private Attorney Services
Greetings:
The purpose of the submission of this Amended and Restated Request for Attorney
General Approval of Private Attorney Services is to increase the requested and authorized
ca aggregate total of fees and reimbursable costs originally requested and authorized from
$300,000.00 to $425,000.00 for FY 2022-2023 (i.e., October 1, 2022,through and including
g September 30, 2023) for Bachara Construction Law Group, P.A. We apologize for submitting
.2 this request for approval of the attached First Amendment to the Attorney Services Agreement
E for this representation so late in the fiscal year. An internal computation error was just
a discovered in our tracking of current fiscal year expenditures, when we were preparing for our
ce FY 2023-2024 (i.e., October 1, 2023, through and including September 30, 2024) submissions.
The additional enclosures in this amended and restated request consist of the proposed First
Amendment detailing the increase and the reasons therefore, and a copy of the entire original
OGA authorization and submission to OGA for FY 2022-2023.
In summary, the law firm concluded two (2) complex multi-year civil cases involving
construction contract law and supporting professional engineer liability cases prior to final
scheduled jury trials (one on the eve of trial), resulting in recovery by settlement for the Agency
of$400,000.00 and $1,000.000.00, respectively. In addition, at the end of May, the Agency
directed the law firm contractor to begin representing it in another unrelated construction
contract law dispute, resulting in an alternative dispute resolution representation, which is
continuing. To protect the Agency and the public, it was and is reasonably necessary to exceed
the original budgeted amounts for this law firm contractor's legal representation of Agency for
FY 2022-2023.
Agency management, staff, and I thank you for your assistance, and are available to
discuss with you any questions or concerns. 7-1
4rsSincere
G 3H6
. iams, Jr., LL.M
AG Receipt Date: __�__�
Amended and Restated Request for Attorney General
**
Approval of Private Attorney Services
11.Agency Name: CLAY COUNTY UTILITY AUTHORITY
Contact Person:JEREMY D.JOHNSTON, P.E.,M.B.A., EXECUTIVE DIRECTOR Phone#: 904/272-5999
2. Proposed Agency SAMAS Contract Number:
or Purchase Order# (if under$5000): E or S
(This information is available from your agency fiscal/purchasing staff.)
3. Class/Group Number: 972-2 6 5 (This number identifies the area of legal specialization being provided for
through contract. Please choose the most appropriate area from the list below.)
010 Administrative Law 240 Commercial Litigation 400 Eminent Domain Law 600 Labor Law
020 Admiralty Law 250 Communication Law 410 Employment Practices Law 605 Land Use Law
030 Agricultural Law 260 Constitutional Law 420 Entertainment Arts and Sports 610 Marital and Family Law
040 Antitrust Law 265 Construction Law Law 630 Patent and Trademark Law
060 Aviation Law 270 Consumer Law 430 Environmental Law 700 Real Estate Law
100 Bankruptcy Law 280 Contract Law 440 Estate Planning and Probate 710 Securities Law
110 Bond Law 285 Copyright Law 500 General Counsel 720 Sunshine/Public Records Law
200 Civil Appellate Practice 290 Corporate Law 510 Health Law 800 Tax Law
210 Civil Rights Law 300 Corrections/Parole Law 530 Immigration Law 850 Utilities Law
220 Civil Trial Practice 320 Criminal Appellate Practice 535 International Law 900 Workers'Compensation Law
230 Collections Law 330 Criminal Trial Practice 540 Juvenile/Dependency Law
4. Type of Request(If this is an original request, please answer only through question #21; if this is a contract
amendment, please answer all questions as appropriate):
Original Contract Contract Amendment X
5. If this is an original request, please provide the estimated total contract amount:
Fees $ Costs $ Total$
6. If this is an original request, please provide the proposed contract period:
From to
7. Please provide a brief description of the legal services to be provided.
Contractor will serve as Construction Law Controversy,Alternate Dispute Resolution, and Litigation Counsel
for significant matters of construction controversy, alternative dispute resolution, and related litigation
matters for the Agency,which has no in-house legal staff. Services will be provided on an as needed basis,at a
hourly rate of$300 per hour for name and senior partner Henry George "Chip" Bachara.Jr., BCS.$275 per
hour for Partner Todd MacLeod, $180 per hour for associate attorneys, and $130 per hour for paralegals. See
Exhibit 1 to Attachment A, re potential for greater award of attorneys fees at current market value against
third-party litigation defendants, in excess of what Agency is paving to Contractor under this renewal contract
amendment.
8. For trial and appellate litigation, please identify:
Style of Case: N/A Case Number: N/A
Court: As directed by the Agency.
9. Identify the reason outside counsel is needed as opposed to utilizing in-house attorney services:
x Necessary legal expertise not available on staff
x Time commitments exceed in-house staff resources
Conflict of interest
x Local representation necessary
Travel, lodging and other costs associated with in-house representation not cost effective
x Other, Identify: Agency has no in-house counsel or support staff.
10. Identify the proposed law firm/counsel:
Law Firm/Counsel Name: Bachara Construction Law Group
Address: One Independent Dr. Ste. 1800
City, State ZIP:Jacksonville, FL 32202
11. Identify by name which partners, associates, research associates or other personnel will be used to perform
the contracted legal services; and a schedule of their current billing rates.
Naive Position Title Hourly Rate
Henry George "Chip" Bachara,Jr. Name/Senior Partner $300.00
Todd MacLeod Partner $275.00
Other Attorneys Associate Attorney $180.00
Other Paralegal Paralegal $130.00
12. Proposed Hourly Rate: See Above Specifications under 11. Estimated Hours: Undetermined at this time.
13. If the method of payment is to be hourly fee, identify what services will be covered by this fee (e.g., attorney
services, paralegal services, research expenditures, overhead including reproductions of materials,
administrative support services, telephone charges including faxing of materials, etc.). See Rule 2-37.030,
FAC.
All services will be provided on an hourly fee basis.
14.What items, if any,will be subject to additional charges not considered in the hourly fee. See Rule 2-37.030,
FAC.
None.
15. If a cap is to be placed on the amount of non-attorney fee expenditures the agency can reimburse over and
above the hourly fee, please identify the amount. $ N/A
16. Is a waiver to the established fee schedule required? X Yes No
If yes, please complete Attachment 1, Statement of Waiver.
17. If an alternate to the hourly billing method is proposed, please describe.
2
Form OAG-001 (12/93[rev.9/2001])
Fixed fee per case
Flat fee per service(s)
Contingency fee
Retainer
Other
18. Services to be performed in: State of Florida, multiple counties as needed
19. Please identify the criteria used by your agency to select the proposed legal counsel and explain.
Magnitude/complexity of case requires firm's resources
Ratings and certifications (e.g., Martindale):AV Preeminent rated, Mr. Bachara is Florida Board Certified
Attorney in Construction Law and enjoys the highest reputation for skill and advocacy results.
Firm experience: Firm is leading Jacksonville law firm for construction law litigation matters, and has prior
governmental representation experience in complex construction dispute resolution and litigation and with
the Agency.
Minority counsel: N/A.
Firm's physical proximity to case, agency: Jacksonville based.
Firm's prior experience with agency: Mr. Bachara has previously appeared before the Board of the Agency.
Firm's prior experience with similar case or issue: Routinely represents substantial owners and governmental
entities in construction law controversy matters.
Billing methodology proposed/rate: Hourly, see specifications under 11, above.
Other
20. Indicate the names of those attorney(s)/firm(s)contacted in addition to the one proposed and their quoted
fees.
None.
21. Will agency staff be serving as co-counsel or participating with the outside counsel beyond oversight or
coordination? YES If yes, identify the participation?
Fact finding, including document review,witness interview
Legal research Formal Discovery Drafting documents Pleading/motion practice
Negotiations Appeals Trial preparation Trial
Co-Counsel Lead counsel
Other X , describe: Outside General Counsel, Grady H. Williams,Jr., LL.M.,will coordinate work of firm
as Agency's Construction Law Controversy,Alternative Dispute Resolution, and Litigation Counsel.The
Agency's Public Records Officer will coordinate related public records request responses.The Agency's Chief
Engineer and Executive Director, both P.E.s,will provide in house engineering advice and assessment.
22. If this request is a contract amendment, please identify the reason for the amendment, describe the
change(s) from the last approval and provide justification for change(s)below.
X Increase in total contract amount (including fees &costs): From$300,000.00 to$425,000.00
3
Form OAG-001 (12/93[rev.9/2000
Increase in hourly rate: From $ _hourly to $ hourly*
Increase in allowance for expenditures over and above hourly rate: From $ to$
X Extension of contract period: From Oct. 1, 2021 through Sept. 30, 2022, to Oct. 1, 2022 through
Sept. 30, 2023.
Revision/change in services to be provided
Other - Please explain
Justification for amendment: Fees shall not exceed $350,000.00 and fees in excess of such amount shall not
be compensable. Costs and expenses in the amount of$75,000.00 is requested for the overall representation.
Contractor has completed two (2) factually complex civil construction law/related professional engineer
liability cases with recoveries of$400,000.00 and$1,000,000.00 via settlement preceding commencement of
scheduled jury trials.In addition, Contractor has undertaken representation of Agency at Agency's request in a
dispute with Agency's general contractor on a separate unrelated construction contract for the site work and
building expansion of Agency's main headquarters building. One AAA mediation initiated by the general
contractor's attorney has been completed,with the parties attempting to finalize and implement the final
settlement based on such mediation in an amicable change order. However, Contractor's representation needs
to continue to ensure general contractor's timely performance with that construction contract. Agency has also
asked Contractor to review and provide input and direction for improvement on Agency's construction
contract forms documentation and construction contracting process protocols. As a result of the increased
demand on Contractor's services and time, it is appropriate for the Agency to increase the compensation being
paid to Contractor based on the current approved hourly rates for attorneys and paralegals.
23. If this request is an amendment to extend the contract period, please provide for the immediate prior fiscal
year only:
$ expended for fees: $218,744.50* $ expended for costs: $16,931.43*
Total$ expended: $235,675.93*
*Throug September 9, 20.\
--- - — Z
Sig : of ing 0 ficer
4Date
er• /,. oh _ . .B.A.
Executive Director
Title of Requesting Officer
4
Form OAG-001 (12/93[rev.9/2001])
Statement of Waiver
Pursuant to Rule 2-37.040, F.A.C., the following rationale exists for waiver of the fee schedule for legal services to
be rendered by Bachara Construction Law Group.
X 1. The Agency is unable to obtain adequate legal representation within the confines of the standard fee
schedule.
__X 2. The Agency is unable to obtain legal services with the special expertise necessary to perform the
particular function of the practice of law which the agency requires.
3. The waiver is necessary to provide legal services as a result of an emergency, an immediate danger to
the public health, safety and welfare, or an opportunity for the Agency to preserve or enhance the public
fisc and that failure to contract immediately for legal services in excess of the standard fee schedule will
work to the detriment of the Agency.
Please provide below the rationale for the justification selected.
Law firm will serve as Agency's Legal Counsel for Construction Law Controversy,Adversary Dispute Resolution,
and Litigation matters, based on its extensive experience in this specialty practice area. The Agency particularly
wishes to rely on the leadership,skill, knowledge.and expertise of Henry George "Chip" Bachara,Jr.. FBCA, who
is the name and senior partner of the law firm. Partner Todd MacLeod is an experienced construction law
litigation counsel. The Agency faces two particularly vexing complex construction law controversy and
prospective litigation matters,with substantial damages incurred. On the Spencer's Clarifier No. 3 matter, the
Agency seeks to recover damages on a job in which general contractor is denying liability, and is raising numerous
defenses and alternative allegations of third-parties' liabilities to the Agency. Agency is pursing liability against the
original general contractor, its insurance carrier, professional engineer and engineering design firm. On the
Fleming Island Clarifier No. 4 matter, the general contractor filed suit versus Agency re the Agency's denial of a
requested change order re failure of that clarifier. Agency has counter sued contractor and also sued Surety on its
bond. Since the resolution of the above civil litigation matters. Contractor has also undertaken to represent
Agency on an alternative dispute resolution matter regarding the site work and building expansion for
Agency's main headquarters building facilities and campus. Particular expertise exists within this law firm in
representing agencies with publicly owned facilities in complex construction related litigation. The Agency has no
in-house le al de artm n
;z3—0Q —c)2 -
Agency ea S' a Date
5
Form OAG-001 (12/93[rev.9/2001])
Attachment 1
FIRST AMENDMENT TO
AGREEMENT BETWEEN CLAY COUNTY UTILITY AUTHORITY
AND
BACHARA CONSTRUCTION LAW GROUP, P.A.
THIS FIRST AMENDMENT("Amendment") is made and entered into this day of September,
2023, by and between CLAY COUNTY UTILITY AUTHORITY,an independent special district of the State of
Florida ("AGENCY"),and BACHARA CONSTRUCTION LAW GROUP, P.A. ("CONTRACTOR"), in reference to
that one certain Agreement(being herein so called)between Agency and Contractor regarding the
Contractor's provision of private attorney contract services to Agency in the field of construction law and
related litigation and alternative dispute resolution,dated effective October 1,2022,for the AGENCY's FY
2022-2023,for the period commencing on October 1, 2022,and concluding on September 30,2023. Any
capitalized terms which are not otherwise defined herein shall have the same meaning as assigned to
them in the Agreement.
RECITALS :
WHEREAS,AGENCY had budgeted$300,000.00 overall for construction law legal services from
CONTRACTOR for FY 2022-2023,and had submitted and received authorization for entry into the
Agreement on that basis from the Office of the Florida Attorney General("OAG");and
to WHEREAS,CONTRACTOR's construction law legal services for FY 2022-2023 have included (i)
preparation for two(2)separate civil jury trials of estimated duration of two(2)weeks each,followed by
all necessary and appropriate actions on behalf of CONTRACTOR to achieve separate negotiated
settlements for payments to the AGENCY,on terms and conditions acceptable to the AGENCY, (ii)
additional legal representation at the request of the AGENCY on an unrelated, unexpected,separate new
construction law alternative dispute resolution with the general contractor providing current site and
building construction services for the expansion of AGENCY'S administrative headquarters,and(iii)such
other necessary,appropriate, or helpful construction law legal services to AGENCY, including but not
limited to construction contract form and contracting process protocol review,on the AGENCY'S request;
and
WHEREAS, based on the CONTRACTOR's expanded scope for construction law legal services to
the AGENCY under the Agreement, as amended by this Amendment, it is necessary and appropriate for
the budgeted contract fee services to be increased to an amount not to exceed$350,000.00,with
related reimbursable costs of the CONTRACTOR to be increased to an amount not to exceed$75,000.00,
with an overall aggregate total contract price for all such construction law legal services to the AGENCY
under the Agreement,as hereby amended, not to exceed$425,000.00 for FY 2022-2023.
NOW,THEREFORE, in consideration of the sum of$10.00 in hand paid by each of the
undersigned parties to the other, and for other good and valuable consideration,the receipt and legal
sufficiency of such is hereby expressly acknowledged,the undersigned parties each agree as follows:
1. The maximum amount of fees authorized by the Agreement shall be not to exceed
$350,000.00 under the Agreement, as hereby amended by this Amendment,and the prior
written provisions of the Agreement including, but not limited to ATTACHMENT A to the
Agreement, B.COMPENSATION-FEES,1.,is hereby so amended.
2. The maximum amount of reimbursable costs authorized by the Agreement shall be not to
exceed$75,000.00 under the Agreement,as hereby amended by this Amendment,and the
prior written provisions of this Agreement including, but not limited to ATTACHMENT A,C.
COMPENSATION-COSTS,5.,is hereby so amended.
3. The aggregate maximum total of fees and reimbursable costs covered by this Agreement,as
amended,shall not exceed the sum of$425,000.00 payable to the CONTRACTOR by the
AGENCY for FY 2022-2023,and any and all contrary prior written provisions of the
Agreement are hereby so amended.
4. Except as otherwise provided above,the Agreement shall remain in full force and effect as
originally executed by the parties and authorized by OAG.
IN WITNESS WHEREOF,CLAY COUNTY UTILITY AUTHORITY,as the AGENCY,and BACHARA
CONSTRUCTION LAW GROUP,P.A.,as the CONTRACTOR, have executed this AGREEMENT to be effective
as of the day of September,2023.
The"CONTRACTOR" The"AGENCY"
BACHARA CONSTRUCTION LAW GROUP, CLAY COUNTY UTILITY AUTHORITY
P.A.
to By: C-,L By
Name: Henry¢ rge("Chip" achara,Jr. Name: Jeremy D.Johnston,P.E.,M.B.A.
Title: Preside{it Title: Executive Director
FEI Number: 26-0403541 APPROVED O FORM A LEGALITY
By:
Na : rady .Williams,Jr., .,
Attorney
Title: General Counsel for the AGENCY
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