Loading...
2024-1522024-152 Authorizing The Retention Of Napoli Shkolnik As Special Counsel To Commence Litigation Against At&T, Verizon, And Any And All Parties To Recover The Town's Damages In Combatting Contamination Of Soil Caused By Degrading Lead Clad Cables At a Regular Meeting of the Town Board of the Town of Wappinger, Dutchess County, New York, held at Town Hall, 20 Middlebush Road, Wappingers Falls, New York, on July 8, 2024. The meeting was called to order by Joseph D. Cavaccini, Town Supervisor, and upon roll being called, the following was recorded: ✓ Vote Record - Resolution RES -2024-152 Yes/Aye No/Nay Abstain Absent 2 Adopted ❑ Adopted as Amended Joseph D. Cavaccini Voter Q ❑ ❑ ❑ ❑ Defeated William H. Beale Voter Q ❑ ❑ ❑ ❑ Tabled Angela Bettina Voter Q ❑ ❑ ❑ ❑ Withdrawn Christopher Phillips Mover Q ❑ ❑ ❑ Al Casella Seconder Q ❑ ❑ ❑ The following Resolution was introduced by Councilman Phillips and seconded by Casella. WHEREAS, utility companies previously installed and buried underground lead clad communications cables in the Town of Wappinger, and WHEREAS, the public nuisance they created, can cause a significant issue to our environment in our community, and WHEREAS, communities throughout the United States have seen property damages arising out of the contamination of soil and water sources by a sprawling network of degrading lead -clad copper cables abandoned by telecommunication companies AT&T, Verizon and other companies in the United States responsible for the installation and maintenance of lead cable lines, and WHEREAS, there are confirmed lead clad underground cables in the Town of Wappinger and Village of Wappingers Falls, and WHEREAS, it is the view of the Town Board that the Town of Wappinger should participate in the multi -district litigation to recover damages from those companies who installed, buried, and later abandoned,and WHEREAS, the law firm of Napoli Shkolnik have extensive experience in environmental protection, and they should be retained as special counsel to prosecute such litigation on behalf of the Town, and NOW, THEREFORE, BE IT RESOLVED, that the Town Board of hereby authorizes and approves the commencement of civil litigation on behalf of the Town of Wappinger against AT&T, Verizon, And Any and all Parties to Recover the Town's Damages in Combatting Contamination of Soil Caused by Degrading Lead Clad Cables, and NOWTHEREFORE BE IT FURTHER RESOLVED, that Town Supervisor Joseph D. Cavaccini is hereby authorized to execute a retainer agreement with the Law Firm of Napoli Shkolnik to serve as special counsel to the Town of Wappinger with respect to the initiation and prosecution of such litigation on a contingency fee basis with such amounts to be computed on the net sum recovered after deducting allowable expenses that have been advanced by special counsel; with no monies to be paid to special counsel for any work performed, costs incurred or disbursements made by special counsel in the event no recovery to the Town is obtained by special counsel. The foregoing was put to a vote which resulted as follows: RESULT: ADOPTED [UNANIMOUS] MOVER: Christopher Phillips, Councilman SECONDER: Al Casella, Councilman AYES: Cavaccini, Beale, Bettina, Phillips, Casella Dated: Wappingers Falls, New York 7/8/2024 The Resolution is hereby duly declared Adopted. JOSEPHT. PAOLONI, TOWN CLERK RETAINER AGREEMENT THIS CONTRACT IS SUBJECT TO ARBITRATION UNDER THE FEDERAL ARBITRATION ACT AND THE STATE OF NEW YORK GENERAL ARBITRATION STATUTE retains the Law Firm of Napoli Shkolnik, as our attorneys to prosecute any legal claim for negligence (or other viable causes of action) against A.-,&TTZ. Ver zo�� _.aid any and all parties individuals and/or corporations that are found to be liable under the law for tll.e l � �iujsa� i(c....:flie. (-rcated. o� itr�buted to a� id ma�� ita�� ied /2L injuries and/or property damages suffered by us and/or tVme our members2.c�ll��„mu� 2„ ti es arising out of the contamination of soil and water sources by a sprawling network of degrading lead -clad copper cables abandoned by telecommunication companies AT&T, Verizon and other companies in the United States responsible for the installation and maintenance of lead cable lines. We specifically agree as follows: 1. FEE PERCENTAGE: Client and Law Firm agree that the Law Firm shall be paid Thirty -Three Percent (33%) of the sum recovered, whether by suit, settlement or otherwise. Client will not be liable to pad/ the Law Firm any l� fee if there is not any form of recovery/. 2. DISBURSEMENTS: In the event there is no recovery, the Client shall not be obligated to pay the Law Firm a legal fee for services rendered. Disbursements may include some of the following expenses: court filing fees, sheriff fees, medical and hospital report/record fees, doctor's report, court stenographer fees, deposition costs, expert fees for expert depositions and court appearances, trial exhibits, computer on-line search fees, express mail, postage, photocopy charges, document management charges, long distance telephone charges among other charges. Document management charges are the fees charged by the law firm for processing documents during litigation, such as medical records, documents produced by defendant(s) and/or other parties, etc. Processing of the documents may include but is not limited to the following: (1) scanning; (2) conversion of native files to PDF documents; (3) OCR (optical code recognition); and/or (4) indexing. At the time of settlement and distribution of proceeds, these expenses shall be deducted from the Client's share after computation of the Attorney's Fee. 3. COMPUTATION OF FEES. The contingency fee shall be computed on the gross recovery, resulting in a net settlement (or judgment), from which all appropriate disbursements in connection with the institution and prosecution of this claim is deducted, as set forth in paragraph 2 above. Examples of how a contingency fee is computed are as follows: Gross settlement $100.00 33% Attorney's Fee $ 33.00 Net settlement $ 67.00 Disbursements -$10.00 Net to Client $ 57.00 4. CONTINGENCY FEE PAYMENT SCHEDULE: As set forth above, the Client agrees to pay the Attorney a contingency fee for legal services rendered upon settlement or conclusion of the matter. If the payments to the Client are not a single lump payment but to be paid over a period of time i.e. "installment payments', such Attorney Contingency Fees will be paid in full from the first installment, or installments paid by Defendant(s). If the initial payment is insufficient to fund the full amount of Attorney's Fees due then in subsequent payments by the Defendant(s), any additional amounts recovered or received annually, the Attorney shall have the right to collect the agreed- upon contingency fee from those subsequent amounts recovered or received from the Defendant or any QSF administrator first. Irrespective of the method of payment i.e., lump sum or installment, the amount of Attorney Fees shall not exceed the contingency amount as set forth herein. To the extent this Amendment differs from the original retainer this Amendment shall control. 5. WITHDRAWAL: The Law Firm expressly reserves the right to withdraw its representation at any time upon reasonable notification to the client. In the event that the client advises the Law Firm to discontinue the handling of this claim, or if the client fails to cooperate with the Law Firm in the handling of this claim, client agrees to compensate the Law Firm a reasonable amount for its services, and for the time spent on this claim on an hourly basis or under such other arrangement that may be agreed upon by the parties. The client understands that the Law Firm have conditionally accepted this case based upon independent confirmation of all facts and injuries claimed to have been sustained by Client. In the event that the client desires to transfer the file from this office, the client shall be responsible to compensate the Law Firm for the reasonable value of their services. Such transfer shall not include documents or attorney work product regarding the general liability of the defendants. 6. APPEALS: The above contingency fee does not contemplate any appeal. The Law Firm are under no duty to perfect or prosecute such appeal until a satisfactory fee arrangement is made in writing regarding costs and counsel fees. 7. STATUTE OF LIMITATIONS: We understand that any lawsuit must be commenced within a certain limited time period, (that may vary, depending upon the defendant) starting from the "discovery of the injury" or of "the date when through the exercise of reasonable diligence such injury should have been discovered... whichever is earlier". We further understand that the Statute of Limitations period for any case must be investigated, and that this Agreement is made subject to that investigation as well as an investigation of the entire case. 8. FINANCING OF CASE: If the firm borrows money from any lending institution to finance the cost of the client's case, the amounts advanced by this firm to pay the cost of prosecuting or defending a claim or action or otherwise protecting or promoting the client's interest will bear interest at the highest lawful rate allowed by applicable law. In no event will the interest be greater than the amount paid by the firm to the lending institution. 9. RESULTS NOT GUARANTEED: No attorney can accurately predict the outcome of any legal matter, accordingly, no representations are made, either expressly or impliedly, as to the final outcome of this matter. We further understand that we must immediately report any changes in address and telephone number to the Law Firm. 10. APPROVAL NECESSARY FOR SETTLEMENT: Attorneys are hereby granted a power of attorney so that they may have full authority to prepare, sign and file all legal instruments, pleadings, drafts, authorizations, and papers as shall be reasonably necessary to conclude this representation, including settlement and/or reducing to possession any and all monies or other things of value due to the Client under the claim as fully as the Client could do so in person. Attorneys are also authorized and empowered to act as Client's negotiator in any and all negotiations concerning the subject of this Agreement. 11. ASSOCIATION OF OTHER ATTORNEYS: The Law Firm may, at its own expense, use or associate other attorneys in the representation of the aforesaid claims of the Client. Client understands that Law Firm employs numerous attorneys that may work on Client's case. 12. ASSOCIATE COUNSEL: The Law Firm may participate in the division of fees in this case and assume joint responsibility for the representation of the client either in the event that the Attorney retains associate counsel or that the client later chooses new counsel, provided that the total fee to the client does not increase as a result of the division of fees and that the attorneys involved have agreed to the division of fees and assumption of joint responsibility. The Client will be advised of such joint responsibility and full disclosure will be made to Client regarding the division of fees so that the consent of the Client can be obtained. 13. NEW YORK OR APPLICABLE LAW TO APPLY: This Agreement shall be considered construed under and in accordance with the laws of the State of New York or applicable law and the rights, duties, and obligations of Client and of Attorneys regarding Attorney's representation of Client and regarding anything covered by this Agreement shall be governed by the laws of the State of New York or applicable law. 14. ARBITRATION: Any and all disputes, controversies, claims or demands arising out of or relating to (1) this Agreement or (2) any provision hereof or (3) the providing of services by the Law Firm to Client or (4) the relationship between the Law Firm and Client, whether in contract, tort or otherwise, at law or in equity, for damages or any other relief, shall be resolved by binding arbitration pursuant to the Federal Arbitration Act in accordance with the Commercial Arbitration Rules then in effect with the American Arbitration Association. Any such arbitration proceeding shall be conducted in New York County, New York. This arbitration provision shall be enforceable in either federal or state court in New York County, New York pursuant to the substantive federal laws established by the Federal Arbitration Act. Any party to any award rendered in such arbitration proceeding may seek a judgment upon the award and that judgment may be entered by any Supreme Court in New York County, New York having jurisdiction. 15. PARTIES BOUND: This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, executors, administrators, legal representative, successors, and assigns. Client or the Law Firm can execute this document electronically, by indicating "I agree" (or similar language) via electronic mail after receiving the Agreement via electronic mail. By indicating "I agree" (or similar language) Client will be bound by the terms of the Agreement and is executing the document electronically via Client's electronic signature, indicated as "/s/" in the signature field and elects the Law Firm advance disbursements. 16. LEGAL CONSTRUCTION: In case any one or more of the provisions contained in this Agreement shall for any reason be held invalid, illegal or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provisions thereof and this Agreement shall be construed as if such invalid, illegal, or unenforceable provision had never been contained herein. 17. PRIOR AGREEMENTS SUPERSEDED: This Agreement constitutes the sole and only Agreement of the parties hereto and supersedes any prior understandings or written or oral agreement between the parties respecting the within subject matter. We certify and acknowledge that we have had the opportunity to read this Agreement and have answered any questions pertaining thereto. We further state that we have voluntarily entered into this Agreement fully aware of the terms and conditions. SIGNED AND ACCEPTED ON THIS day of 20 [CLIENT] Printed Name Email Address: Title: Address: Phone: NAPOLI SHKOLNIK, Printed Name of Attorney