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Home My WebLink About5J General Civil Legal Services Report Phone 952.447.9800 / Fax 952.447.4245 / www.cityofpriorlake.com 4646 Dakota Street SE Prior Lake, MN 55372 CITY COUNCIL AGENDA REPORT MEETING DATE: NOVEMBER 20, 2017 AGENDA #: 5J PREPARED BY: FRANK BOYLES, CITY MANAGER PRESENTED BY: FRANK BOYLES AGENDA ITEM: CONSIDER APPROVAL OF A RESOLUTION AUTHORIZING THE MAYOR AND CITY MANAGER TO ENTER INTO A CONTRACT FOR CIVIL LEGAL SERVICES WITH HOFF & BARRY, P. A. AND APPOINTING SARAH E. SCHWARZHOFF AS PRIMARY CITY ATTORNEY DISCUSSION: Introduction The purpose of this agenda item is to receive city council approval pursuant to Minnesota Statute to appoint a city attorney. History Since May 12, 2012 the city attorney has been the firm of Gregerson, Rosow, Johnson and Nilan, LTD. Ric Rosow of that firm was initially the primary city attorney. Scheduling and workload issues caused a change to Mark Johnson. Most recently Sarah E. Schwarzhoff has served in this capacity for the last three years. Current Circumstances Ms. Schwarzhoff is leaving the Gregerson firm to be of counsel with the firm of Hoff & Barry, PA located in the City of Eden Prairie. Ms. Schwarzhoff has done a capable job of being the city’s primary civil representative for some time now as demonstrated by interviews I have conducted with both city council and city staff members. Attached is a brief contract affirming the new relationship with Hoff and Barry, PA and Sarah E Schwarzhoff specifically as city attorney. Like the old contract, termination calls for 60-day notice. The Gregerson firm has waived this provision to provide for an orderly and expeditious transition. Minnesota Statutes 412.651, Subd 3. Appointment of Personnel. Provides,” …The appointment and removal of the attorney shall be subject to the approval of the council.” This statutory provision recognizes that the city attorney is in the unique position of working both for the city council and city manager at the same time. With this exception, all other personnel appointments are made by the city manager. ISSUES: Ms. Schwarzhoff’s change of firms is not done with any umbrage on behalf of either party. Gregerson attorneys have reaffirmed for me their confidence in Ms. Schwarzhoff’s capabilities. They would like to retain our work but also understand that Ms. Schwarzhoff has earned the confidence of the city while working under their moniker. They will continue to shepherd the 150th Project and Coffman Litigation to a conclusion but all other civil work will be transferred with Ms. Schwarzhoff. Sarah will be retaining Prior Lake files for ease in historic recordkeeping and research. George Hoff, the principal of the Hoff & Barry, P.A. firm has extensive municipal law experience. Mr. Hoff does extensive litigation work for the city’s insurer LMCIT. In fact, Mr. Hoff has represented Prior Lake in this capacity in the past. While the Hoff & Barry firm is smaller than the Gregerson firm, it is focused more directly on municipal law and we are confident that the expertise we need is available. We will continue to have our prosecution services provided by the Scott Joint Prosecution which is managed through the county and personnel law through Mark Girouard of the Nilan, Johnson, Lewis, PA law firm. One advantage of the new offices is their comparative closeness to Prior Lake as she will be in Eden Prairie rather than downtown Minneapolis. FINANCIAL IMPACT: Ms. Schwazhoff previously billed $160 and hour with her old firm and will bill at $165 hr. under the new contract. The contract also calls for pass through cost which are charged to developers when the city attorney accomplishes legal work associated with a development. ALTERNATIVES: 1. Motion and second as part of the consent agenda to enter into a contract with the law firm of Hoff & Barry PA and appointing Sarah E. Schwarzhoff as primary city attorney. 2. Motion and second to remove this item from the consent agenda for additional discussion. RECOMMENDED MOTION: Alternative #1 4646 Dakota Street SE Prior Lake, MN 55372 RESOLUTION 17-___ RESOLUTION AUTHORIZING THE MAYOR AND CITY MANAGER TO ENTER INTO A CONTRACT FOR CIVIL LEGAL SERVICES WITH HOFF & BARRY, P. A. AND APPOINTING SARAH E. SCHWARZHOFF AS PRIMARY CITY ATTORNEY Motion By: Second By: WHEREAS, Effective December 1, 2017, the City’s current City Attorney Sarah E. Schwarzhoff of Gregerson, Rosow, Johnson & Nilan Ltd. will be moving to work with Hoff & Barry, P.A.; and WHEREAS, the City desires to have Sarah E. Schwarzhoff in conjunction with the firm of Hoff & Barry, P.A. to serve as city attorney; and WHEREAS, the parties desire to more specifically identify the duties and responsibilities of the City and Attorney NOW THEREFORE, BE IT HEREBY RESOLVED BY THE CITY COUNCIL OF PRIOR LAKE, MINNESOTA as follows: 1. The recitals set forth above are incorporated herein. 2. The Mayor and City Manager are hereby authorized to enter into an Agreement for General (Civil) Legal Services with the firm of Hoff & Barry, P.A. appointing Sarah E. Schwarzhoff as the City’s primary City Attorney effective December 1, 2017. PASSED AND ADOPTED THIS 20TH DAY OF NOVEMBER 2017 VOTE Briggs McGuire Thompson Braid Burkart Aye ☐ ☐ ☐ ☐ ☐ Nay ☐ ☐ ☐ ☐ ☐ Abstain ☐ ☐ ☐ ☐ ☐ Absent ☐ ☐ ☐ ☐ ☐ ______________________________ Frank Boyles, City Manager Agreement for General (Civil) Legal Services Whereas, the City of Prior Lake (“City”), a public body corporate and politic operating as a statutory city under the laws of the State of Minnesota and located within the County of Scott, desires to have certain attorney services provided; and Whereas, the City desires to have Sarah E. Schwarzhoff in conjunction with the firm of Hoff & Barry, P.A. (“Attorney”) to serve as city attorney; Whereas, the parties desire to more specifically identify the duties and responsibilities of the City and Attorney; Now Therefore, it is hereby agreed that this document by and between the City and the Attorney, shall be a binding obligation on behalf of the parties named. I. Term This agreement shall be effective December 1, 2017, and terminable as provided in Section IX. II. Scope of Legal Services A. General Scope of Services The services required by the City include, but are not limited to, the following: • Attendance at all City Council meeting. Attendance at other meetings as requested. • Review of municipal contracts as requested, including contracts for public improvements, developments, joint powers agreements, construction, lease agreements, and the like. • Representation of the City in the acquisition of properties for public improvements, special assessment appeal, easements, parks. • Review of all City Council and Planning Commission materials. • Representation of the City in proceedings for public improvement projects. • Representation of the City on economic development related issues as requested. • Representation of the City in matters related to the enforcement of City Codes, including building, subdivision, nuisance and zoning codes. • Defend the City in all litigation, except in those cases where insurance companies are required to exclusively provide defense, or where the City chooses to hire specialized or other legal services. The Attorney is responsible for monitoring and coordinating with the selected representation. • Review of legal issues in City Council, HRA and Planning Commission agenda items as requested. • Review of draft ordinances, resolutions, developer agreements and correspondence as requested. • Meeting and/or telephone conversations with and advising Mayor, Council members, City Manager, Department Heads and other staff on general legal matters. • Research and submit legal opinions on legal matters requested by the City Manager. • Provide written and/or oral summaries to City Manager of law changes affecting the City, including recommending changes in operations or procedures to assure compliance. • Available by phone and email to answer staff questions. III. Fees General Legal Services: $165/hour for attorneys ; $90/hour for paralegal and law clerk. Litigation and Matters involving Threatened/Pending Litigation $185/hour for attorneys; $90/hour for paralegal and law clerk. Development, Third Party Revenue Financing and other Projects for which legal fees are paid by Applicant $275/hour for attorneys; $90/hour for paralegal and law clerk. Exp enses to be reimbursed Express delivery, copies, westlaw charges, postage Percent of an hour billed .25 IV. Responsible Attorney and Staff Sarah E. Schwarzhoff shall be the primary attorney for the City. Ms. Schwarzhoff shall be responsible for the performance of this agreement, although he may be assisted by other attorneys or support staff in the firm. Ms. Schwarzhoff shall supervise all work performed on behalf of the City. V. Conflicts of Interest The Attorney shall not accept any client or project which knowingly would place it in a conflict of interest with the services to be provided to the City under this agreement. If a conflict of interest should develop, the Attorney shall be responsible for taking the necessary steps to comport its representation of the City with the Lawyers Code of Professional Responsibility. VI. Assignment of Services and Agreement The Attorney shall not assign any interest or obligation of this Agreement without the prior written consent of the City Manager. VII. Work Product All ordinances, resolutions, correspondence, and other documents or materials drafted for the City by the Attorney shall, upon their completion, become the property of the City. VIII. Insurance and Indemnification Attorney agrees to maintain a valid policy of Professional Liability Insurance for the duration of this agreement. The value of the policy shall not be less than the cap for municipal tort liability as established by Minnesota Statutes. IX. Termination The City or Attorney may terminate this agreement upon sixty (60) days written notice. Failure by the City or the Attorney to comply with any of the terms of this agreement shall be grounds for terminating this agreement, as shall be the City’s dissatisfaction with the Att orney’s performance under the agreement. Upon termination of this agreement, the City shall only be responsible for the monthly fee and any additional billings accrued as of the date of termination. Further, the City expressly reserves the right to hire independent counsel on matters it determines requires an attorney with more experience or expertise in a particular field. In such a situation, the City shall remain responsible to the Attorney for the monthly fee provided under this agreement along with any billings not related to the matter for which special counsel was retained. The City shall only be responsible to the Attorney for extra expenses in relation to the matter for which special counsel is retained if the City names the Attorney as co-counsel in the matter or otherwise requests the Attorney’s participation. X. Acceptance The terms of this agreement are hereby accepted and made binding upon and between the City of Prior Lake and Sarah E. Schwarzhoff in conjunction with the law firm of Hoff & Barry, P.A.. City of Prior Lake Sarah E. Schwarzhoff By: _________________________ By: _________________________ Its: Mayor City of Prior Lake Hoff & Barry, P.A. By: _________________________ By:__________________________ Its: City Manager Its:___________________________