Res 074-94 5/17/1994 RESOLUTION NO. d LI—0 —1'
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF WICHITA
FALLS, TEXAS, AUTHORIZING THE CITY MANAGER TO EXECUTE A
SPECIAL COUNSEL AGREEMENT WITH THE LAW OFFICES OF
MARTIN DIES FOR THE PURPOSE OF PARTICIPATING IN A CLASS
ACTION LAWSUIT AGAINST VARIOUS ASBESTOS MANUFACTURERS,
IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF SAID
AGREEMENT; FINDING AND DETERMINING THAT THE MEETING AT
WHICH THIS RESOLUTION WAS DISCUSSED WAS OPEN TO THE
PUBLIC AS REQUIRED BY LAW.
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF WICHITA
FALLS, TEXAS:
SECTION 1. That the City Manager is hereby authorized to
execute a Special Counsel Agreement with the Law Offices of
Martin Dies for the purpose of participating in a class action
lawsuit against various asbestos manufacturers, in accordance
with the terms and conditions of said agreement, attached hereto
and made a part hereof for all purposes.
SECTION 2 . It is hereby officially found and determined
that the meeting at which this resolution was passed was open to
the public as required by law.
PASSED AND APPROVED this the 17th day of May, 1994.
M A Y O R
ATTEST:
41(1(1160 )13/101-0
City Clerk
SPECIAL COUNSEL AGREEMENT
This Special Counsel Agreement made and entered into on this the
day of , 1994, by and between the City of Wichita Falls ("the
City"), a governmental subdivision of the State of Texas, acting by and through
its City Council ("City Council"), and Martin W. Dies, Attorney P.C. ("Special
Counsel"), and whose address is 1009 West Green, Orange, Texas 77630-
5697.
A. WITNESSETH:
Whereas, the City owns and, or operates public buildings which may
contain friable asbestos-containing acoustical, decorative or fireproofing plaster
materials (hereinafter "surface treatment ACM") for which it has or will incur
costs related to the management and, or abatement of these materials due to
the hazardous nature of asbestos;
WHEREAS, the City Council is desirous of recovering monetary damages
from the responsible manufacturer(s) of said materials which have damaged the
buildings by reason of their presence therein; and
WHEREAS, the City Council has reviewed the facts in connection with
the presence of the surface treatment ACM in its building(s) and has determined
to employ the legal services of Special Counsel as its Attorney to represent the
City in the prosecution of this claim or claims against any person, firm,
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corporation, or entity, arising out of the purchase, installation, or presence of
surface treatment ACM used in the construction of the City's building(s) which
Special Counsel determines to be appropriate.
NOW, THEREFORE, the City Council authorizes Special Counsel to bring
suit on such claim or claims, if necessary, and to prosecute the same to final
judgment or conclusion or to compromise and settle the claims as Special
Counsel deems best or advisable, but such settlement or compromise shall be
made only upon approval of the City Council or its designated representative.
IN CONSIDERATION THEREOF, the City Council recognizes that there will
be expenses involved in the preparation and prosecution of its claim(s) and, or
lawsuit, and the City Council agrees that it will pay the reasonable and
necessary expenses of the litigation relating to the prosecution of the City's
claim(s) including but not necessarily limited to, testing, surveys, inspections,
expert witness fees,travel, copying, related discovery expenses, and such other
and reasonable and necessary Attorney's out-of-pocket expenses directly
associated with Special Counsel prosecution of the City's claims. Special
Counsel agrees to advance the City's expenses of the litigation and the City
Council agrees that all such expenses thereby incurred by Special Counsel shall
be reimbursed to Special Counsel from the proceeds of the City's share of any
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settlement, compromise, or judgment in connection with the City's claim(s)
hereof.
Other Expenses not solely attributable to the direct prosecution of the
City's claims but attributable to or of direct benefit to the overall conduct of all
similar cases on behalf of Texas governmental and, or political subdivisions
being prosecuted by Special Counsel will also be reimbursed to Special Counsel
by the City on a pro-rata basis with all other participating governmental and, or
political subdivisions from the proceeds of the City's share of any settlement,
compromise or judgment.
In consideration for the services to be rendered by the Special Counsel
on behalf of the City, the City Council agrees to give and allow Special Counsel
as fees in the prosecution of its claim(s) the sum of thirty-five percent (35%)
of the gross amount recovered or received on its claim(s) whether by
compromise, settlement or judgment. The City Council hereby grants, assigns,
transfer and conveys to said Special Counsel as fees herein a thirty-five percent
(35%) undivided interest in the City's gross claim(s). The Special Counsel will
not receive an hourly rate. If no recovery is obtained, the Special Counsel will
receive no fees. The Special Counsel may associate other counsel to assist in
the case but no additional compensation will be allowed other than the
contingent fee herein granted.
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The City Council recognizes that claims may be pursued in a suit with
other governmental bodies and that any settlement or judgment may be a lump
sum payment to all governmental subdivisions in the litigation. The City Council
agrees that the prosecution of its claim is for the removal of asbestos-
containing surface materials and that payment of any lump sum recovery will,
of necessity, be based upon the presence of asbestos whose manufacturer is
identifiable. In the event there is a lump sum payment to more than one
governmental entity as a result of a judgment or settlement, the City Council
recognizes and agrees that a formula will be developed and applied to distribute
the payment which will accommodate past and future removal costs on an
equitable basis.
The Special Counsel may withdraw from the case at any time the Special
Counsel determines that the prospect of recovery or the cost of the litigation
does not justify continued litigation. In the event the Special Counsel makes
such determination, the Special Counsel will openly and fully discuss the facts
with the City Council before withdrawal.
In the event of such withdrawal by the Special Counsel, the contingent
fee as set forth in this Agreement shall be of no further force and effect.
The City Council agrees to cooperate fully, and pledges the support of its
agents and employees, in the preparation and trial of this case, and to comply
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with all reasonable requests made by the Special Counsel in conjunction with
the preparation and presentation of the case.
It is fully understood that no guarantees have been made with regard to
the amount of recovery, if any, which may be had in this case, or in connection
with the City's claim(s), and no representations have been made as to what
amounts, if any, the City may be entitled to recover or may actually recover in
this case.
Dated this day of , 1994.
CITY OF WICHITA FALLS
By:
MARTIN W. DIES, ATTORNEY P.C.
By:
MARTIN W. DIES, President
ATTEST:
Secretary
APPROVED AS TO FORM:
By:
City Attorney
9432.CON
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