HomeMy WebLinkAboutAGREEMENT WITH BARNES LAW GROUP AND EXPERT DISCOVERY REGARDING ALL FEE LITIGATION_ AUGUSTA 911 LITIGATION 1
Discovery
200 Clinton Avenue,Suite 806
Huntsville,AL 35801
PROFESSIONAL AUDIT& LITIGATION SUPPORT SERVICES CONTRACT BETWEEN
CITY OF AUGUSTA, GEORGIA AND EXPERT DISCOVERY,LLC
This Professional Services Contract (the "Contract") is made and entered into by and
between the consolidated government of Augusta, Georgia (hereinafter the "CITY") and Expert
Discovery, LLC (hereinafter the "CONTRACTOR" or"EXPERT DISCOVERY").
Section 1. TERM/EARLY TERMINATION
This Contract shall become effective as of the date last signed below by one of the parties.
This Agreement shall (i) terminate absolutely and without further obligation on the part of
Augusta,Georgia each and every December 31st,as required by O.C.G.A. §36-60-13,as amended,
unless terminated earlier in accordance with the termination provisions in this Article of this
Agreement; (ii)automatically renew on each January 1st,unless terminated in accordance with the
termination provisions of this Article of this Agreement; and (iii) terminate absolutely, with no
further renewals, on May 31, 2021, unless extended by written amendment.
This Contract(and the engagement it represents) is limited to the matters described herein
and, unless specifically agreed between us, such engagement shall end at the conclusion of such
matters.
Effective on the provision of written notice, this Contract may be terminated before the
expiration of its term if a party defaults on a material obligation owed to the other party hereunder
(a "Default"), and the non-defaulting party fails to cure or remedy that Default within thirty (30)
days after receipt of written notice by the non-defaulting party to the defaulting party.
Upon the expiration or early termination of this Contract, all finished or unfinished
documents, data, studies, and reports or other materials prepared by the CONTRACTOR shall be
furnished to the CITY and become its property.
Section 2. SCOPE OF CONTRACTOR SERVICES
(a) The CONTRACTOR will perform a forensic audit to detect, document and arrange
for collection of unpaid 911 and/or E911 fees that should have been remitted by
telecommunication providers ("Provider(s)")to the CITY, during the period from which any past
fees may be legally collected and for two years thereafter (hereinafter "Services"). The amounts
that are detected by the CONTRACTOR as being payable but not paid by a Provider to the CITY
during this period are referenced herein as the "Fee Deficiency Amount."
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(b) The CITY agrees to engage the CONTRACTOR, and the CONTRACTOR hereby
agrees to perform the Services for the CITY pursuant to the terms of this Agreement.
Section 3. CONTRACT REPRESENTATIVES/NOTICES
Each party hereby appoints a representative who shall coordinate with the other party on
all matters pertinent to the performance of the Services and administration of this Contract (the
"Contract Representative").
The CITY's Contract Representative(s) is:
Andrew G. MacKenzie, General Counsel
535 Telfair Street
Suite 3000
Augusta, Georgia 30901
(706) 842-5550
The CONTRACTOR's Contract Representative(s) is:
Expert Discovery, LLC
Contact: Jeff Miller or Roger Schneider
200 Clinton Avenue, Suite 806
Huntsville, AL 35801
(256)705-7019
The Contract Representatives designated above shall have the authority to act on behalf of its
organization to transmit instructions and receive information. Either party may designate a
Contract Representative other than the person named above upon written notice to the other.
All notices, requests, demands and other communications which are required or may be given
under this Contract shall be in writing and shall be deemed to have been duly given to the above-
noted Contract Representative: (a) when received, if personally delivered; (b) two (2) business
days after being sent, if sent for next day delivery to a domestic address by a nationally-reputable
overnight delivery service (e.g., Federal Express); (c) on the date of transmission, if sent by
facsimile, telex or other wire transmission with transmission confirmed; and (d) upon receipt, if
sent by certified or registered mail,return receipt requested.
Section 4. TIME OF SERVICE
All work shall be completed and delivered by the schedule established by the respective
Contract Representative for the parties. The Contract Representatives will finalize the mutually
agreed upon schedule no later than thirty(30)days after the execution of the Contract establishing
a timeframe to proceed towards a recovery.
Section 5. GENERAL PROVISIONS
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(a) Expenses. CONTRACTOR, at its sole expense, will engage all personnel and bear
the responsibility for all its expenses (including, but not limited to, travel, copying, office space
and administration) that relate to or arise out of the performance of its Services; provided that
understandings for payment for legal services and Court Costs(as defined herein) are described in
Section 6 of this Agreement.
(b) Personnel. The CONTRACTOR warrants that it has or can engage the professional
personnel capable of performing the Services, as called for herein, in a satisfactory and proper
manner. CONTRACTOR further warrants that it will perform the Services in a professional and
workmanlike manner consistent with standards utilized by other providers who perform similar
services.
(c) Access to Materials. At no expense to the CONTRACTOR, the CITY agrees to
make available to the CONTRACTOR any 911 and/or E911 fee payment records, financial
documents, materials or any other information in the CITY's possession (or otherwise readily
available) that the CONTRACTOR requests which reasonably relates to the performance of its
Services.
(d) Cooperation. Except as provided herein, the parties will reasonably cooperate to
facilitate recovery of amounts owed to, or for the benefit of, the CITY by Providers for prior
year obligations in accord with appropriate laws and regulations, including, if mutually agreed,
waiving or reducing fees and amounts to be recovered.
Section 6. COMPENSATION/APPROVALS BY CITY
(a) If the CONTRACTOR is successful in collecting a Fee Deficiency Amount, either
prior to, or after the filing of a suit for the collection of the same, the CONTRACTOR shall be
entitled to a fee of 11.60% of the Fee Deficiency Amount. The CONTRACTOR shall also be
entitled to a fee for two subsequent years on the new revenue generated pursuant to (c) below.
(b) In the litigation to collect the Fee Deficiency Amount, CONTRACTOR and The
Barnes Law Group, LLC and Evangelista Worley LLC (the "FIRMS") agree to advance all filing
fees and other litigation costs (including, but not limited to, expenses of subpoenas, depositions,
expert witness fees, etc., and allocated as they shall separately agree)associated with the litigation
(collectively, "Court Costs"). Court Costs shall not include any payments to or compensation
received by CONTRACTOR. If there is a recovery, CONTRACTOR (and the Firms under the
terms of its separate engagement letter) will be reimbursed the Court Costs paid or otherwise
advanced out of the Fee Deficiency Amount recovered after the payment of any contingency fee
amounts."
In no event shall the aggregate sum of the fee paid to CONTRACTOR and the fee paid to
the FIRMS exceed 35% of the Fee Deficiency Amount recovered.
If a Fee Deficiency Amount is not collected following the litigation efforts of the FIRMS,
the CITY shall not be obligated to pay any compensation to CONTRACTOR or the FIRMS for
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their respective services, or to reimburse CONTRACTOR or the FIRMS for the Court Costs paid
or otherwise advanced on behalf of the CITY in any such litigation.
(c) Prospective Services. The parties acknowledge that in the event that the CITY with
the efforts of CONTRACTOR (and the FIRMS) is successful in collecting a Fee Deficiency
Amount(s) for prior audited years, that there is an ongoing revenue benefit realized by the CITY
for the services rendered hereunder. The CITY further acknowledges a need for monitoring
services to ensure that newly identified and formerly unrealized 911 and/or E911 fees continue as
well as for the institution of a compliance program ensuring proper and accurate receipt of future
911 and E911 fees. CONTRACTOR shall provide such services for a maximum of two years
following the settlement or resolution of claims against any Provider and, for such services, shall
receive a contingent fee as described in paragraph (a) of this section. The contingent fees due
under this paragraph shall be the specific Fee Deficiencies for the accounts identified as a result of
the services of Expert Discovery and the FIRMS upon which no 911 fees were previously paid or
were underpaid in prior years, and will not apply to past or future 911 fee revenues that were not
generated from the services provided hereunder.
Section 7. NON-EXCLUSIVE AGREEMENT
The CITY acknowledges that, during the term of this Contract,the CONTRACTOR is not
working exclusively for the CITY and that the CONTRACTOR simultaneously may be
performing work similar to those hereunder for other states, cities, counties and 911 districts. The
parties further understand that this Contract does not prohibit the CITY from hiring other
professional consultants, at the sole cost of the CITY, to advise it on matters related to those
covered by this Contract.
Section 8. MISCELLANEOUS TERMS AND CONDITIONS
(a) Changes. Any changes in the scope of services, the term, the amount of
compensation payable to the CONTRACTOR or other provisions herein must be mutually agreed
upon between the CITY and the CONTRACTOR and expressed in a written amendment(s)to this
Contract signed by both parties.
(b) No Assignment. The CONTRACTOR may not assign or transfer this Contract or
any its obligations or interest herein without the written consent of the CITY, which consent may
be withheld for any reason; provided, however, that the CONTRACTOR may assign its right or
claims for amounts owed it by the CITY hereunder to a bank, trust company, or other financial
institution without such approval if written notice of any such assignment is promptly furnished
to the CITY.
(c) Binding on Heirs and Successors. This Agreement shall be binding upon and inure
to the benefit of any successor to CITY. As used in this Agreement, the term "successor" shall
include any person, firm, employer or other entity (including the State) which at any time, by
whatever means, assumes or is assigned responsibility of CITY for the covered project. This
Agreement shall also be binding upon and inure to the benefit of the CONTRACTOR, its heirs,
executors and administrators.
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(d) Reports and Information. The CONTRACTOR, at such times and in such forms
as the CITY may require, shall furnish to the CITY such periodic reports as it may request
pertaining to the work or Services and other matters related to CONTRACTOR'S performance of
this Contract.
(e) Findings Confidential. Unless compelled to be disclosed by legal process or
mandated by provisions of the Georgia Open Records Act, all of the reports, information, data,
and deliverables given to or prepared or assembled by the CONTRACTOR hereunder shall be
treated by it as confidential.
(f) Compliance with Laws. The CONTRACTOR shall comply with all applicable
laws,ordinances and codes of the U.S. Government,the State of Georgia and the local jurisdictions
in which the CITY provides 911 and/or E911 services. Before commencing its work,
CONTRACTOR, at its own expense, will obtain all licenses, permits or other governmental
authorizations needed to complete the services, including without limitation, any required
business licenses (collectively, "Licensing"). CONTRACTOR further agrees to maintain that
Licensing throughout the performance of its services.
(g) Audits, Inspection & Access to Records/Record Retention. At any time during
normal business hours and at mutually agreed times, the CONTRACTOR, upon request from the
CITY, shall (i) make available to the CITY (or its duly authorized representatives) all of the
records generated with respect to matters covered by this Contract and(ii)will permit the CITY,
or any of its duly authorized representatives, to audit, examine, and make copies, excerpts or
transcripts from such records,and to make audits of all materials or other data relating to all matters
covered by this contract. The CONTRACTOR shall retain all books, documents, papers, and
records which are generated as from the performance of its Services for a period of four(4) years
following completion of the contracted work and the expiration of the Contract, unless written
permission to destroy them at an earlier date is granted by the CITY. If litigation, claim, or audit
concerning the matters reflected in those records is started before the expiration of the retention
period, the records shall be retained until all litigation, audits, and/or audit finding involving the
records have been resolved.
(h) No Conflict of Interest. The CONTRACTOR covenants that it presently has no
interest and shall not acquire any interest, direct or indirect, which would conflict in any manner
or degree with the performance of its Services. The CONTRACTOR further covenants that in the
performance of this contract, it shall not engage any person having any such interest.
(i) No Third Party Beneficiaries. The Contract is made only for the benefit of the
CITY and the CONTRACTOR. It is not intended,nor shall it be construed,to grant or bestow any
benefit, right or privilege to any third party.
(j) Contractor's Ability to Perform. CONTRACTOR warrants that all actions required
to be taken by or on behalf of it to execute the contract, and to perform its covenants, obligations
and agreements hereunder, have been duly taken, that CONTRACTOR is a duly organized and
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existing entity that is authorized to perform business under the laws of the State of Georgia, and
that it has the power to enter into and to perform and observe its agreements and covenants in the
Contract.
(k) Full Contract. The Contract(including the attachments hereto)represents the entire
agreement between the parties, and supersedes all prior negotiations, representations or
agreements, either written or oral, concerning the matters expressed herein.
(1) Governance. In the event of any conflict in the provisions of the main body of this
Contract and the attachments to it, the provisions in the main body shall supersede, govern and
control.
(m) Independent Contractor. CONTRACTOR is an independent contractor of the
CITY. This Contract does not create any partnership,joint venture or principal-agent relationship
between the CITY and CONTRACTOR.
(n) No Employment Created. No person engaged by the CONTRACTOR shall be
considered an employee of the CITY or be eligible to receive any benefits provided by it to its
employees. In this regard CONTRACTOR acknowledges and accepts all responsibilities
imposed by federal income tax laws, and any applicable state income tax laws, concerning the
performance of Services by its personnel, including but not limited to, the responsibility of
withholding amounts for federal income taxes, Social Security taxes, federal unemployment tax
and applicable state and local income taxes.
(o) Invalidity. If any provision of this Contract is held to be invalid, illegal or
unenforceable by a court of competent jurisdiction, the remaining provisions of it shall remain in
full force and effect.
(p) Interpretation. In the event of any dispute concerning the meaning of provisions
herein, the following principles apply when interpreting this Contract or resolving such dispute:
(i) the headings are included for the convenience of the parties, and are not intended to interpret
the meaning of provisions herein; (ii) in the event of any ambiguity among provision(s), no
presumption shall be drawn against the party that may have drafted a provision(s) in this Contract;
and(iii) each party has read and fully considered the entire Contract.
(q) Governing Law. This Agreement shall be governed by, and construed in
accordance with the laws of the State of Georgia. The courts of Georgia, located in Richmond
County, Georgia, shall have exclusive jurisdiction to hear any claim between the Contractor and
the City in connection with the Contract, and Contractor submits to the jurisdiction and venue of
such courts. Prior to filing any claim or action related to this Contract, the parties may, but shall
not be obligated to submit such claims or action to non-binding mediation before a mediator
mutually agreeable to the parties. The parties shall share equally in the costs of mediation.
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IN WITNESS WHEREOF, the CITY and the CONTRACTOR have caused this Contract to be
executed by their duly authorized officers-on -the-days—and,-year written below their names
respectively.
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By: Roger Schneider
Date: May 23, 2016
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Discovery
200 Clinton Avenue,Suite 806
Huntsville,AL 35801
TRADE SECRETS NON-DISCLOSURE AGREEMENT
THIS NON-DISCLOSURE AGREEMENT(the"Agreement")is made on the latest date either
party signs below by and between the City of Augusta, Georgia, a subdivision of the State of
Georgia, with an address of 535 Telfair Street, Augusta, Georgia 30901 ("Recipient"), and
Expert Discovery LLC, a for profit limited liability company authorized to do business in the
State of Georgia, with an address of 200 Clinton Ave., Suite 806, Huntsville, Alabama 35801
("Company").
RECITALS
The Recipient may request that the Company provide, and the Company may provide,
certain trade secrets required by law, regulation, bid, request for proposal or provision of
contracted services to be submitted to the Recipient related to the provision of contracted for
consulting services to identify under-billing,under-collection and under-remittance of 911 fees by
telecommunications providers that operate in the City of Augusta, Georgia("Purpose").
The Company is willing to disclose the information,but only on the condition that the trade
secrets shall not be disclosed by Recipient and those permitted to see the information on behalf of
Recipient.
Pursuant to the Georgia Open Records Act (Ga. Code Ann., § 50-18-72), the General
Assembly has declared that there is a strong presumption that public records should be made
available for public inspection without delay.
NOW,THEREFORE, in order to induce the Company to disclose certain trade secrets to
Recipient if necessary during the course of performing contracted for services, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
1. "Trade Secret"as defined at Ga. Code Ann., § 10-1-761 means information,without regard
to form, including, but not limited to, technical or nontechnical data, a formula, a pattern,
a compilation, a program, a device, a method, a technique, a drawing, a process, financial
data, financial plans, product plans, or a list of actual or potential customers or suppliers
which is not commonly known by or available to the public and which information:
a) Derives economic value, actual or potential, from not being generally known to, and
not being readily ascertainable by proper means by, other persons who can obtain
economic value from its disclosure or use; and
b) Is the subject of efforts that are reasonable under the circumstances to maintain its
secrecy."
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2. No part of the Trade Secret, whether properly or improperly obtained, shall be used for any
purpose whatsoever other than the Purpose described above. Without limiting the
applicability of the foregoing, the Recipient shall not export files, burn or copy electronic
information in CD form,or print any documents,except in limited instances for transmittal
of the same to the Company.
3. Pursuant to the Georgia Open Records Act(Ga. Code Ann., § 50-18-72),the Company has
submitted and attached to the records identified as Trade Secrets an affidavit affirmatively
declaring that specific information in the records constitute trade secrets pursuant to Article
27 of Chapter 1 of Title 10. The Recipient will only disclose the Trade Secrets pursuant to
the Georgia Open Records Act and provide notice to
To Company in writing at:
Discovery Experts, LLC.
200 Clinton Ave., Suite 806,
Huntsville, Alabama 35801
Attn: Jeffrey Miller& Roger Schneider
Phone: (256) 705-7019
E-mail:jrmiller(lexpert-discovery.com&
rsch@expert-discovery.com
4. All Trade Secrets shall be held by the Recipient and Recipient Agents, if applicable, in
trust and confidence and shall be kept private and not disclosed to any third party or outside
source, except as may be expressly authorized in writing in advance by the Company or
required by the Georgia Open Records Act. The Recipient shall be liable to the Company
for any breach of this Agreement by the Recipient, by its employees, Recipient Agents, or
any other related or unrelated third parties to whom Recipient discloses the Trade Secrets.
5. The Recipient's obligations hereunder do not apply to any portion of the Trade Secrets
that: (a) is or becomes publicly available, by other than unauthorized disclosure, (b) is
independently developed by the Recipient, or (c) is required to be produced by order of a
court or other legitimate authority, provided, that the Recipient gives the Company
reasonable prior notice of the forced disclosure and, at the Company's request, uses
reasonable efforts to obtain protection for the Trade Secrets.
6. No representations or warranties, express or implied, are made by the Company as to the
quality or accuracy of the Trade Secrets provided to Recipient.
7. This Agreement shall remain in effect for a period of five (5) years from the date hereof.
8. The Recipient acknowledges that remedies at law may be inadequate to protect the
Company from actual or threatened breach of this Agreement. Therefore, the Company
shall be entitled to seek injunctive relief to enforce the terms of this Agreement,in addition
to any other remedies available to it in law or equity.
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9. This Agreement shall be construed in accordance with the laws of the State of Georgia.
10. All Trade Secrets shall remain the exclusive property of the Company. Promptly after
completion of each of its contractual duties to the Company, the Recipient shall promptly
return all Trade Secrets upon the written request of the Company, or verify in writing to
the Company that all Trade Secrets has been permanently eliminated from its electronic
and other records, or otherwise destroyed.
11. It is expressly understood that this Agreement supersedes any previous agreement, written
or oral,between the parties relating to the subjects contained herein and contains the entire
and only agreement between the parties respecting this subject matter. This Agreement
may only be modified in writing signed by both parties.
IN WITNESS WHEREOF, each of the parties has signed this Agreement, or has had it signed
by its only authorized representative, as of the last date shown below.
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By: Roger Schneider
Date: September 21, 2016
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Making It Right
31 Atlanta Street I Marietta,Georgia 30060 1770.227.6375
Hardie Davis, Jr., Mayor
535 Telfair St.
Suite 200
Augusta, Georgia 30901
Re: Engagement Letter re 911 Litigation
Dear Mayor Davis:
The purpose of this letter is to set forth the scope of the proposed engagement of
The Barnes Law Group, LLC and Harris Penn Lowry, LLP (the "Firms") as special legal
counsel for the consolidated government of Augusta (the "City"), in connection with the
recovery of certain underpaid, uncollected and/or unremitted 911 and/or E911 fees due
the City, and to set forth the financial arrangements regarding our engagement and to
verify our mutual agreement to the following:
1. Scope of Engagement
You have asked us to represent the City, as special counsel in connection with the
recovery of certain 911 and/or E911 fees that should have been collected and/or remitted
by telecommunication providers ("Provider(s)") to the City through the termination of
this litigation and any additional periods for which recovery of such underpaid,
uncollected and/or unremitted fees may be practicable under applicable law (the
"Services"). In conjunction therewith, the Firms shall work in collaboration with Expert
Discovery, LLC ("Expert Discovery") which has been concurrently retained by the City
under a separate agreement to provide forensic telecommunications auditing, support and
consulting services related thereto(the"Expert Discovery Agreement"). The amounts that
are identified by Expert Discovery and the Firms as being payable but unpaid by a
Provider to the City during this period are referenced herein as the "Fee Deficiency
Amount(s)."
Our representation of the City is limited to the matters noted above, and unless
specifically agreed between us or as otherwise provided herein, our engagement will end
at the conclusion of the collection of the Fee Deficiency Amount whether through
settlement, trial, appeal or any post judgment collection action. In the event of a
successful recovery of a Fee Deficiency Amount, certain prospective services will be
provided by the Firm as set forth in paragraph 4 herein.
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2. Fees
(a). Our billing practice is to charge for our services based on the criteria set
forth in Rule 1.5 of the Rules of Professional Conduct. These criteria include the nature
of the fee agreement, the time and labor required, the novelty or difficulty of a particular
question involved, the level of skill requisite for proper performance of the services,
customary fees for such services, the amount involved and the result obtained, special
limitations imposed by the client, the nature and length of the professional relationship
with the client, and the experience, professional reputation and ability of the attorney or
attorneys performing the services.
(b). With respect to the matters covered by this engagement, the City agrees to
pay the Firms for services rendered, a contingent fee as set forth below. Any money the
City receives in connection with any services covered by this engagement letter and/or
the Expert Discovery Agreement, whether via settlement, Court award, appeal or post-
judgment collection action (the "Fee Deficiency Proceeds"), shall first be used to pay the
contingent fee and then any litigation expenses that either Expert Discovery or the Firms
has advanced in connection with any of the litigation matters covered by this engagement
letter, pursuant to Section 3 below.
(c). The contingent attorney fees payable to the Firms shall be 23.4% (twenty
three and four tenths per cent of Fee Deficiency Proceeds) whether recovered before or
after the filing of any complaint and litigation for unpaid amounts of the Providers.
(d). The contingent fee payable to Expert Discovery, LLC shall be 11.6%
(eleven and six and four tenths per cent of Fee Deficiency Proceeds) whether recovered
before or after the filing of any complaint or claim for unpaid amounts of the Providers.
In no event shall the aggregate amount of the fee paid to the Firms and the fee paid
to Expert Discovery exceed 35% of the Fee Deficiency Proceeds.
(e). It is agreed and understood that the Firms' compensation for the Services
rendered in the engagement is described herein upon a contingent fee basis. If no Fee
Deficiency Proceeds are recovered, the City shall not be indebted to the Firms for any
attorneys' fees whatsoever. The City understands that it could retain other attorneys to
represent the City by compensating such attorneys at attorneys' regular hourly rates. The
City expressly declines to do so, not wishing to incur such expense and chooses the terms
set forth herein instead.
3. Litigation-Related Court Costs
The Firms agree to advance (without reimbursement until and unless such time as
the Firms are successful in collecting Fee Deficiency Proceeds and those proceeds
become available to the City) all filing fees and other litigation costs (including, but not
limited to, expenses of subpoenas, depositions, expert witness fees, etc.). The Firms will
agree to provide periodic reports of said expenses upon request.
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If no Fee Deficiency Proceeds are recovered, the City shall not be indebted to the
Firm (or to Expert Discovery) for any of the litigation costs advanced or otherwise
incurred whatsoever.
4. Prospective Services
The City acknowledges that in the event it(with the efforts of the Firms and Expert
Discovery) is successful in collecting a Fee Deficiency Amount(s)for prior audited years,
that there is an ongoing revenue benefit realized by the City for the services rendered
hereunder. The City further acknowledges a need for monitoring services to ensure that
newly identified and formerly unrealized 911 and/or E911 fees continue as well as for the
institution of a compliance program ensuring proper and accurate receipt of future 911
and E911 fees from underpayment by the Providers. The Firms shall provide such
services for the 2-year period following the settlement or resolution of claims against any
Provider and, for such services, shall receive a contingent fee as described in paragraph 2
for the recovery of the revenue resulting from the collection of the Fee Deficiency
Amount. The contingent fees due under this paragraph shall be the specific Fee
Deficiencies for the accounts identified as a result of the services of the Firms and Expert
Discovery upon which no 911 fees were previously paid or were underpaid in prior years,
and will not apply to past or future 911 fee revenues that were not generated from the
services provided hereunder.
5. Term of Agreement/Early Termination
Subject to the limitations below, this Agreement shall commence upon the
execution of the same by the City and shall continue until the collection of the Fee
Deficiency Amount and for two years thereafter, or until it has been determined that no
Fee Deficiency Amount can be recovered. This Agreement shall (i) terminate absolutely
and without further obligation on the part of Augusta, Georgia each and every December
31st, as required by O.C.G.A. § 36-60-13, as amended, unless terminated earlier in
accordance with the termination provisions in this Agreement; (ii) automatically renew
on each January 1st, unless terminated in accordance with the termination provisions of
this Agreement; and(iii)terminate absolutely,with no further renewals, on May 31,2021,
unless extended by written amendment.
6. Conflicts
The City recognizes the employment of the Firms is for a special purpose only and
the Firms shall not be prohibited from continuing representation of Goldcross EMS, Inc.
in litigation relating to the Richmond County Emergency Medical Services zone
(Augusta, Georgia(Petitioner)v. Georgia Department of Public Health(Respondent)and
Gold Cross EMS, Inc. (Intervenor Respondent)). The Firms shall not file any other action
against the City during the term of this Agreement without prior approval from the City.
7. Withdrawal from Representation
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The attorney/client relationship is one of mutual trust and confidence. If you have
any questions at all about the provisions of this engagement, we invite inquiries. We
encourage our clients to inquire about any matter relating to our engagement or billing
statements that are in any way unclear or appear unsatisfactory. Conversely, any failure
on your part to meet your obligation of timely payments under this agreement will
constitute authorization for the Firms to withdraw from representing the City and to reveal
this Agreement and any other necessary documents to any court or agency if the same
should prove necessary to affect withdrawal.
This engagement is also subject to termination by either party at its sole discretion,
subject to the Rules of Professional Conduct and any applicable court rules. Upon such
termination, whether by the City or the Firms, the City will remain liable for any unpaid
fees earned by the Firms hereunder and costs incurred and reimbursable hereunder,
whether or not billed.
8. Privacy
In the course of providing our Services, we may receive significant nonpublic
personal financial information from the City or from other financial advisors at the City's
specific instruction. All information we receive from the City or from others at its
direction will be held in confidence and not released to people outside the Firms, except
as required in the performance of our Services, as agreed to by the City, or as required
under an applicable law. In order to protect the City's nonpublic personal information
we maintain physical, electronic and procedural safeguards. We consider all information
relating to representation of our clients to be confidential, and it is treated accordingly, as
required by the Rules of Professional Conduct.
9. Communications
The Firms regularly communicate with their clients and with third parties, on
behalf of their clients,through the use of landline, digital and cellular telephones,wireless
email devices, unencrypted e-mail and telecopier machines. Each of these means of
communication is practically and technologically susceptible to varying risks of
interception by (or misdelivery to) unintended recipients. By executing this agreement,
the City consents to the Firm's utilization of the above-referenced means of
communication.
If the City is not fully versed in the risks inherent in each of the aforementioned
means of communication, please contact the undersigned to discuss them before
executing this Agreement. If you would prefer that the Firm refrain from using one or
more of the above-referenced means of communication please refrain from executing this
agreement, communicate that preference to us in writing, and we will revise this
agreement accordingly.
10. Acknowledgement of Terms
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If this letter correctly sets forth your understanding of the scope of the services to
be rendered to you by the Firms, and if the terms of the engagement are satisfactory,
please execute the enclosed copy of this letter and return it to us. If the scope of the
services described is incorrect or if the terms of the engagement set forth in this letter are
not satisfactory to you, please let us know in writing in order that we can discuss either
aspect.
11. No Representation of Success
By executing this agreement,you acknowledge that there is uncertainty concerning
the outcome of this matter and that the Firms and the undersigned attorneys have made
no guarantees as to the disposition of any phase of this matter. Any representation or
expression relative to the outcome of this matter is only an expression of opinion and does
not constitute a guarantee. The Firms shall not be responsible for the performance of any
further legal services under this agreement until such agreement is returned to the Firms,
whereupon our engagement by you is accepted per the stated terms.
We look forward to working with you and thank you once again for the
opportunity to serve you.
Respectfully yours,
Roy E. Barnes, Esq.
The Barnes Law Group, LLC.
David J. Worley 411,
Harris Penn Lowry,L
Approved and Agreed, this ;4 / day of , 2016
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WAIVER OF CONFLICT
After being apprised of and carefully considering all possible present and
future conflicts of interests presented by Barnes Law Group, LLC's representation
of Gold Cross EMS, Inc. in the matter styled Augusta, Georgia vs. Georgia
Department of Health, et al. Case No. 2014RCCV00343, Superior Court of
Richmond County (and subsequent appeal and representation related to ambulance
services), and its engagement on behalf of the City to pursue the collection of unpaid
911 and/or E911 fees due the City from various telecommunication companies, and
being fully informed in the premises by independent counsel, the undersigned
expressly acknowledges and waives the potential conflict(s) and voluntarily
consents to such concurrent representation by the Barnes Law Group, LLC.
Approved and Agreed, this 4kda_ y o , _ ' ___ _, 2016
/cm Hardie Davis, Jr., Mayor
Off Reba o 1 y • Augusta.- Georgia
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