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HomeMy WebLinkAboutItem 10 Authorize the Mayor to Sign a Contract with the Firm of Leahy & Cox for General Counsel Services Meeting Date: Meeting Type: Department: Staff Contact: Staff Phone No: Estimated Time: September 17, 2007 Regular Session Human Resource?Z Bill Spiry . 726-378 Consent Calendar AGENDA ITEM SUMMARY SPRINGFIELD CITY COUNCIL ITEM TITLE: CITY ATTORNEY CONTRACT RENEWAL ACTION REQUESTED: Authorize the Mayor to sign a contract with the firm of Leahy & Cox for general counsel services. ISSUE STATEMENT: The City contract was previously discussed with Council at a meet of the Council Finance/Judiciary Committee on July 23, 2007. This contract is valid for a period of three (3) years and can be renewed annually for consecutive one-year periods unless terminated in accordance with contractual conditions. Separate contracts are signed by each partner who works simultaneously to fulfill the obligations of the firm. ATTACHMENTS: DISCUSSION AND FINANCIAL IMPACT: Attachment 1: Proposed Contract Amendment: Joseph J. Leahy Attachment 2: Proposed Contract Amendment: Matthew J. Cox The City Attorney has requested an increase in the base hourly rate of the firm's retainer contract. This will increase the hourly base from $137.39/hr to $145.00/hr. In the past, the retainer agreement has been adjusted to reflect changes in number of hours provided under the agreement and the hourly rate. The hourly rate is normally adjusted to mirror the cost-of-living increase granted to non-union employees. In lieu of a cost-of-living increase, non union employees will be having 6% of the cost of the retirement program paid by the city. The City Attorney is requesting that the number of hours under the agreement remain at 2004 hours and that the hourly rate be increased from $137.39 per hour to $145.00 per hour. This represents a 5.5% increase. In support of this request the City attorney conducted a market survey which provides adequate justification for the increase. It also indicates that the city would continue to receive legal services at a reasonable hourly rate. Increasing the hourly rate to $145.00 per hour would increase the retainer cost from $275,300 to $290,580 (including benefit package costs). The fiscal year 07-08 budget assumed a 3% increase and a total cost of the retainer at approximately $283,600. The $6,800 difference would be balanced through a budget transfer process. City of Springfield 2007-2008 RETAINER AGREEMENT JOSEPH J. LEAHY, Attorney at Law THIS AGREEMENT, made and entered into this 1st day of July, 2007, by and between the CITY OF SPRINGFIELD, a municipal corporation, hereinafter called the "City," and JOSEPH J. LEAHY, Attorney at Law, hereinafter referred to as the "Attorney," now therefore, WITNESSETH: WHEREAS, the City desires to retain the Attorney to perform the duties and professional services required of the Office of City Attorney of the City of Springfield; and WHEREAS, simultaneously with the execution of this agreement Matthew J. Cox, to also perform the duties and professional services required of the Office of City Attorney of the City of Springfield; and WHEREAS, it is the purpose of this agreement to establish the terms and conditions by which the City engages the Attorney under this retainer agreement to act as attorney for and to fulfill the duties of the Office of the City Attorney; now, therefore, IN CONSIDERATION of the mutual covenants and agreements herein contained, the parties do agree to the following terms and conditions. 1. DUTIES: The Attorney will act as City Attorney and as general counsel for the City for the basic retainer provided herein and will perform the following services thereunder. 1.1 Furnish representation to all regularly scheduled Council meetings and Planning Commission meetings, together with representation at other conferences or meetings upon request. 1.2 Advise the City Council and staff of the City on legal, personnel, and claims issues as required, either in the form of written opinions or oral advice. A request for such assistance will ordinarily be made through department heads and in all cases only upon the express authorization of department heads or authorization of the City Manager, Human Resources Director, City Council or Planning Commission. 1.3 Review and approve ordinances and resolutions as requested; draft ordinances and resolutions as required. 1.4 Review and approve upon request all contracts and other legal documents. 1.5 Draft documents of a legal nature, including but not limited to deeds, easements, contracts, and other agreements. 1.6 Utilize his best efforts and ability to minimize the exposure of the City of liability and legal expenses. It is understood that the City also employs liability defense counsel as part of its risk management program. The Attorney does not have responsibility for such but will furnish such assistance, advice, and coordination as may be requested with such other city counsel as may be employed to assist the City's risk management program. Page 1 of 4 ___. __O_n___ _~ . ATTACHMENT 1 . 1. 7 The Attorney does not have responsibility under this retainer agreement for the prosecutorial function or for the munidpal court function. However, he will fumish such administrative assistance and advice as may be requested by the City Manager in that area. 1.8 The Attomey wiJI provide consultation and assistance, if needed, in the retention of special counsel in the event that outside counsel or representation is found necessary. 1.9 The Attorney shall act as Oty Attomey, however he may assign Oty Attorney duties to associate attomeys of the Attomey. .. Said associates shall. be designated as Assistant Oty Attorneys. 2. STATUS: Attorney is an independent contractor and not an employee of Oty. As such, Oty is not Iiabte for Attorney's federal, state, or local inCDme tax; Social Secuiity taxes; workers compensation premiums; or payroll tax of any kind.. 3. COMPENSAnON: The Oty will pay the Attorney in consideration for the foregoing services based on an hourly rate of $145.00 a total annual compensation of $290,580.00. This amount wi" be paid in 12 equal monthly retainer payments based on the following formula: IQtQt Annual Comcensation - Benefit Packaae Costs = Retainer Paid . 3.1. The benefit package indudes the Attorney's choice of medical insurance programs as available to Oty's administrative-supervisory personnel, dental insurance, Long Tenn Disability insurance, Accidental Death and Disability insurance in the amount of $100,000 (Prudential), Voluntary ute Insurance in the amount of $100,000 (OGNA), Basic ute and PreRetirement and a monthly deferred compensation amount of $1,666.67. 3.2 It is understood and agreed that the Attorney, JOSEPH J. LEAHY and any associates of the Attorney as may be assigned duties required to be performed by the Attomey under this agreement, will provide approximately 167 hours of professional legal services monthly for the Oty. This estimate is based upon the time ~ for the immediate preceding fiscal year. The Attomey will provide monthly time records of the amount of time expended. In the eve.nt the hours expended exceed 2,004 for the term of this agreement, there will be no Increase in the compensation herein. Total Firm com~sation under this retainer (inducting benefit package costs) shall not exceed $290,580.00 for the term of this agreement. (Both parties understand that the total compensation paid to the firm of Leahy & Cox is $290,580.00). The compensation will continue to be reviewed annually by the City Council and be adjusted according to time . to be expended and on the basis of annual performance evaluation performed prior,to . the adjustment of the retainer commendng with the City's fiscal year. .4. 3.3 This retainer agreement may be changed for future fiscal years by an addendum attached to this agreement. Each year when requested, If this retainer agreement is to be continued, the Attorney will provide to the Oty for budgeting purposes the amount estimated to be required to pay for services for the succeeding year. THIRD PARTY REIMBURSEMENT: Should the Oty seek reimbursement from third parties for any costs or services performed by Attorney under the retainer, Attorney shall provide Page 2 of 4 ATIACHMENT 1 e .e ea. any costs or services pelfonned by Attorney under the retainer, Attorney shall provide documentation required to validate reimbursement and said reimbursement shall be retained by h~. . 5. ADDmONAL SERVICES: The following additional services are considered outside the retainer and will be rendered by the Attorney at an hour1y rate of$145.oo per an hour for any attorney perfonning services under this agreement. Attorney must notify aty and receive authorization from the Oty Manager prior to Attorney opening a billable file under this dause of the contract. 5.1 Utigation: Services in litigation shall be perfunned as required at the hourly rate for the Attomeyor attorneys involved as herein above set forth. Utigation service indudes the following: 5.1.1 Contested administrative proceedings. 5.1.2 Contested land use proceedings. 5.1.3 Oty franchise claims. 5.1.4 Contract daims. 5.1.5 Tort, EEOC, and evil rights daims. 5.1.6 Employee GrievanceO defense above the aty Manager hearing/eve!. 5.2 Bond Issues: Services in connection with Ixmd issues and other indica of indebtedness or borrowing shatl be perfunned by h Attorney for City at usual, customary, and reasonable charges less 10%. 5.3 Bond Counsel: If the service of bond counsel is required, as is ordinary in such cases, bond counsel compensation is not included in this retainer. 5.4 Eminent Domain Services: Proceedings based upon eminent domain and condemnation, induding negotiating services, 'will be provided at the regular hourly rates for the lawyers involved. 5.5 Documentation Reouired: In all of the above cases, the Attorney shall provide such time records and documentation as is required by the aty of Springfield and ordinarily maintained for the performance of such service, which services shall be billed either monthly or pertodicaHy until completion of the matter. 6. AUTHORT74TION FOR ADDmONAL SERVICES: No service which requires payment of fees above the retainer shall be performed nor any expense incurred by the Attorney without prior notification to the responsible department head or the Oty Manager and approval if required. 7. EXPENSES: In addition to the foregoing charges for services, the Oty will pay upon billing the direct expenses incurred by h Attorney on behalf of the Oty or in connection with h performance of his duties as City Attorney and general counsel. No such exPenses will be incurred without budget authorization and, if n~~ry, Anance Department approval. TERM AND TERMINATION: The term of this agreement shall be for the period of July 1, 2007 to June 30, 2008. In view of the .professiOnaJ attorney-client relationship and the ~e ~".?!.~. __0___ . ATTACHMENT 1 necessity of the Oty's confidence in its attorneys, it is understood that Oty may terminate the relationship and this agreement at any time. The Oty will endeavor, however, to give reasonabte notice of an intention to terminate. The Attorney may resign at any time but will not resign from his representation of the Oty without giving at least ninety (90) days notice to the Oty. This agreement, unless otherwise interrupted or canceled, shall be valid for a period of three . (3) years and will be renewed annually for consecutive one-year periods unless terminated in accordance with the conditions herein. At the sole discretion of the Oty, the contract may be renewed for up to three consecutive one year periods. Specifically, these periods shall be for the: First Year: Fiscal year beginning July 1,2007, ending June 30, 2008; Second Year: Fiscal year beginning July 1, 2008, ending June 30, 2009; Third Year: Fiscal year beginning July 1, 2009, ending June 30, 2010; 9. CONFUCTS OF INTEREST: It is hereby understood and agreed that the Attorney is also in private practice and shall continue such practice. The Attorney will not knowingly, however, undertake any representation which would create a conflict of intereSt. If such a conflict should . occur, the Attorney will immediately.notify both the City and any other client with whom such conflict of interest exists and shall not represent any such dient further in the matter involving the City. If the drcumstancesare such that because of the conflict the Attorney cannot represent the Oty, the Attorney will provide the consultation and assistance referred to in paragraph 1.1.8 atx>ve. The Attorney shall not, however, be responsible for compensation of other counset. IN WITNESS WHEREOF, the parties have hereunto set their hands and seals the clay and year first above Wlitten. ATTORNEY, An Independent Contractor and Attorney at Law: ~<,r....''''''' ~ \...~,"" Joseph J. Leahy Attorney at Law A1TEST: For The OTY OF SPRINGFIELD, A Munidpal Corporation: Sidney W. Leiken Mayor Date Amy Sowa City Recorder Date 1J J.~ iU1 Date ---------.--.--.--------P.~_1J~tolJ_____.___ ____ ATTACHMENT 1 City of Springfield 2007-2008 RETAINER AGREEMENT MATTHEW J. COx, Attorney at Law THIS AGREEMENT, made and entered into this 1st day of July, 2007, by and between the CITY OF SPRINGFIELD, a municipal corporation, hereinafter called the "City," and MATTHEW J. COX, Attorney at Law, hereinafter referred to as the "Attorney," now therefore, WITNESSETH: WHEREAS, the City desires to retain the Attorney to perform the duties and professional services required of the Office of City Attorney of the City of Springfield; and WHEREAS, simultaneously with the execution of this agreement, the City intends to enter into a similar agreement for the purpose of retaining Joseph L. Leahy, to also perform the duties and professional services required of the Office of City Attorney of the City of Springfield; and WHEREAS, it is the purpose of this agreement to establish the terms and conditions by which the City engages the Attorney under this retainer agreement to act as attorney for and to fulfill the duties of the Office of the City Attorney; now, therefore, IN CONSIDERATION of the mutual covenants and agreements herein contained, the parties do agree to the following terms and conditions. 1. DUTIES:. The Attorney will act as City Attorney and as general counsel for the City for the basic retainer provided herein and will perform the following services, thereunder. 1.1 Furnish representation to all regularly scheduled Council meetings and Planning Commission meetings, together with representation at other conferences or meetings upon request. 1.2 Advise the City Council and staff of the City on legal, personnel, and claims issues as required, either in the form of written opinions or oral advice. A request for such assistance will ordinarily be made through department heads and in all cases only upon the express authorization of department heads or authorization of the City Manager, Human Resources Director, City Council or Planning Commission. 1.3 Review and approve ordinances and resolutions as requested; draft ordinances and resolutions as required. 1.4 Review and approve upon request all contracts and other legal documents. 1.5 Draft documents of a legal nature, including but not limited to deeds, easements, contracts, and other agreements. 1.6 Utilize his best efforts and ability to minimize the exposure of the City of liability and legal expenses. It is understood that the City also employs liability defense counsel as part of its risk management program. The Attorney does not have responsibility for such but will furnish such assistance, advice, and coordination as may be requested with such other city counsel as may be employed to assist the City's risk management Page 1 of 4 ATTACHMENT 2 program. 1. 7 The Attorney does not have responsibility under this retainer agreement for the prosecutorial function or for the munidpal court function. However, he will furnish such administrative assistance and advice as may be requested by the City Manager in that area. 1.8 The Attorney will provide consultation and assistanCe, if needed, in the retention of special counsel in the event that outside counsel or representation is found necessary. 1. 9 The Attorney shall act as City Attorney, however he may assign City Attorney duties to associate attorneys of the Attorney. Said aSSOCiates shall be designated as Assistant Oty Attorneys. 2. STATUS: Attorney is an independent contractor and not an employee of Oty. As such, aty is not liable for Attorney's federal, state, or local income tax; Social Security taxes; workers compensation premiums; or payroll tax of any kind. 3. COMPENSATION: The Oty wifl pay the Attorney in consideration for the foregoing services based on an hOUrly rate of $145.00 a total annual compensation of $290,580..00. This amount will be paid in 12 equal monthly retainer payments based on the following formula: Total Annual Comoensation - Benefit Package Costs = Retainer Paid 3.1 The benefit package indudes the Attorney's choice of medical insurance programs as available to Oty's administrative-supervisory personnel,. dental insurance, Long Term Disability insurance, Accidental Death and Disability insurance in the amount of $100,000 (Prudential), Voluntary Ufe Insurance in the amount of $100,000 (OGNA), Basic Ufe and PreRetirement and a monthly deferred compensation amount of $1,666.67. 3.2 It is understood and agreed that the Attorney, MAnHEW J. COX, and any associates of the Attorney as may be assigned duties required to be performed by the Attorney under this agreement, will provide approximately 167 hours of professional legal services monthly for the Oty. This estimate is based upon the time expended for the immediate preceding fiscal year. The Attorney will provide monthly time records of the amount of time expended. In the event the hours expended exceed 2,004 for the term of this agreement, there will be no increase in the compensation herein. Total Rrm compensation under this retainer (induding benefit package costs) shall not exceed $290,580.00 for the term of this agreement. (Both parties understand that the total compensation paid to the firm of Leahy & Cox is $290,580.00). The compensation will continue to be reviewed annually by the aty Council and be adjusted according to time to be expended and on the basis of annual performance evaluation performed prior to the adjustment of the retainer commendng with the City's fiscal year. 3.3 This retainer agreement may be changed for future fiscal years by an addendum attached to this agreement Each year when requested, if this retainer agreement is to be continued, the Attorney will provide to the City for budgeting purposes the amount estimated to be required to pay for services for the succeeding year. 4. THIRD PARlY REIMBURSEMENT: Should the City seek reimbursement from third parties for ..____.... _.h____h~~ge. 2gf 4 ATTACH MENT 2 any costs or services perfonned by Attorney under the retainer, Attorney shall provide documentation required to validate reimbursement and said reimbursement shall be retained by the City. 5. ADDmONAL SERVICES: The following additional services are considered outside the retainer and will be rendered by the Attorney at an hourly rate of $145.00 per an hour for any attorney performing services under this agreement. Attorney must notify Oty and receive authorization from the aty Manager prior to Attorney opening a billable file under this clause of the contract. 5.1 Utiaation: Services in litigation shall be performed as required at the hourly rate for the Attorney or attorneys involved as herein above set forth. Utigation service indudes the following: 5.1.1 Contested administrative proceedings. 5.1.2 Contested land use proceedings. 5.1.3 City franchise claims. 5.1.4 Contract claims. 5.1.5 Tort, EEOC, anddvil rights claims. 5.1.6 Employee Grievance defense above the City Manager hearing level. . 5.2 Bond Issues: Services in connection with bond issues and other indicia of indebtedness or borrowing shall be performed by the Attorney for aty at usual, customary, and reasonable charges less 100/0. 5.3 Bond Counsel: If the service of bond counseJ is required, as is ordinary in such cases, bond counsel compensation is not included in this retainer. 5.4 Eminent Domain Services: Proceedings based upon eminent domain and condemnation, induding negotiating services, will be provided at the regular hourly rates for the lawyers involved. 5.5 Documentation Reauired: In all of the above cases, the Attorney shall provide such time records and documentation as is required by the City of Springfield and ordinarily maintained for the performance of such service, which services shall.be billed either monthly or periodically until completion of the matter. 6. AUTHO~T74TION FOR ADDmONAL SERVICES: No service which requires payment of fees above the retainer shall be performed nor any expense incurred by the Attorney without prior notification to the responsible department head or the City Manager and approval if required. 7. EXPENSES: In addition to the foregoing charges for services, the Oty will pay upon billing the direct expenses Incurred by the Attorney on behalf of the Oty or in connection with the performance of his duties as Oty Attorney and general counsel. No such expenses will be incurred without budget authorization and, if necessary, Finance Department approval. 8. TERM AND TERMINATION: The term of this agreement shall be for the period of July 1, 2007 to June 30, 2008. In view of the professional attorney-client relationship and the Page 3 of_4 . ATTACHMENT 2 necessity of the City's confidence in its attorneys, it is understood that City may terminate the relationship and this agreement at any time. The City wit! endeavor, however, to give reasonable notice of an intention to terminate. The Attorney may resign at any time but will not resign from his representation of the aty without giving at least ninety (90) days notice to the City. This agreement, unless otherwise interrupted or canceled, shall be valid for a period of three (3) years and will be renewed annually for consecutive one-year periods unless terminated in accordance with the conditions herein. At the sole discretion of the Oty, the contract may be renewed for up to three consecutive one year Periods. Specifically, these periods shall be for the: First Year: Fiscal year beginning July 1, 2007, ending June 30, 2008; Second Year: Fiscal year beginning July 1, 2008, ending June 30,2009; Third Year: Fiscal year beginning July 1, 2009, ending June 30, 2010; 9. CONFUCTS OF INTEREST: It is hereby understood and agreed that the Attorney is also in private practice and shall continue such practice. The Attorney will not knowingly, however, undertake any representation which would create a conflict of interest. If such a conflict should occur, the Attorney wil1 immediately notify both the City and any other client with whom such conflict of interest exists and shall not represent any such client further in the matter involving the City. If the drcumstances are such that because of the conflict the Attorney cannot represent the City, the Attorney will provide the consultation and assistance referred to in paragraph 1.1.8 above. The Attorney shall not, however, be responsible for compensation of other counsel. IN WITNESS WHEREOF, the parties have hereunto set their hands and seals the day and year first above written. ATTEST: For The QTY OF SPRINGFIELD, A Munidpal Corporation: ATnDRNEY,AnIndependentContractorand Attorney at law: Sidney W. leiken Mayor Date ~t 2 <. to, Date Amy Sowa City Recorder . Date Page 4 of 4 ATTACHMENT 2