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4.9. SR 06-17-2013 Elk REQUEST FOR ACTION River TO ITEM NUMBER Mayor and City Council 4.9 AGENDA SECTION MEETING DATE PREPARED BY Consent June 17, 2013 Cal Portner, City Administrator ITEM DESCRIPTION REVIEWED By Civil Legal and Prosecution Attorney Services Contracts REVIEWED BY ACTION REQUESTED Approve by motion the Civil Legal and Prosecution Attorney Services Contracts. BACKGROUND/DISCUSSION Earlier this year,the Council approved going to market to solicit professional services for civil legal and prosecution services. The city last went to market for prosecution services in 2006. Over the past year,the city has gone to market for a number of professional services including insurance broker and engineering services. It is a good public practice to test the market periodically to ensure the services best fit city needs. On May 30, 2013, Councilmember Motin along with staff from administration, engineering,planning, police, and finance interviewed three firms each for prosecution and civil legal services. After careful deliberation,the interview teams unanimously agreed to recommend Peter Beck for civil legal services and Hawkins &Baumgartner,P.A. for prosecution services with Scott Baumgartner as the lead attorney. FINANCIAL IMPACT There is no financial impact as each proposal is within the approved 2013 budget. ATTACHMENTS • Agreement for Legal Services between the City of Elk River and Peter K. Beck Attorney at Law PLLC • Agreement for Legal Services between the City of Elk River and Hawkins &Baumgartner, P.A. POWERED BY N:\Public Bodies\Agenda Packets\06-17-2013\17inal\WS Atty sr.docx IN A f U RE] Agreement for Legal Services between the City of Elk River and Peter K. Beek Attorney at Law PLLC THIS AGREEMENT, effective January 1, 2013, by and between the CITY OF ELK RIVER, a Minnesota municipal corporation ("City") and PETER K. BECK ATTORNEY AT LAW PLLC, a Minnesota Professional Limited Liability Company ("Attorney"). WHEREAS, Peter Beck has served as city attorney for the City for over 20 years, during which time legal services have been provided to the City through a retainer arrangement with larger projects billed on an hourly basis; and WHEREAS, City and Attorney desire to enter into an agreement which carries forward the prior retainer/hourly project arrangement, including past practices with respect to the arrangement. NOW, THEREFORE, in consideration of the mutual undertakings herein, the parties hereto agree as follows: 1. ACCEPTANCE OF PROPOSAL. A. The Attorney shall furnish and perform general civil municipal legal services for the City and shall be responsible for coordinating the delivery of legal services to the City by Attorney and other law firms engaged by the City to provide specialized expertise including Gray Plant Mooty, Campbell Knutson PA and any other firms or lawyers approved by City. B. The Attorney shall be engaged as an independent contractor and not as a City employee. The Attorney is free to contract with other entities. 2. TERM. The Attorney shall serve at the pleasure of the City and may be terminated without cause by the City at any time. The Attorney may terminate the Agreement at any time, provided that the Attorney shall give the City thirty(30) days' written notice before the termination becomes effective. 3. FEES AND PAYMENT. A. Retainer. Attorney will provide City with general day-to-day legal services for a retainer fee of $3,250 per month. Services included in the retainer include responding to questions and providing advice to City officials and staff, and meeting with City officials and staff as necessary, to meet the day-to-day legal needs of the City. Attendance at City Council and other board and commission meetings is included in the retainer, unless attendance at the meeting is in connection with an Hourly Project as described below. B. Hourly Projects. In addition to routine legal services provided under the retainer, Attorney shall open separate files for matters which go beyond the scope of the retainer. These files will be billed on an hourly basis at the rate of$155 per hour. Examples of hourly projects include oversight of significant litigation matters, participation in the review of significant development projects or land use approvals, participation in the preparation or review of significant ordinances or policies, and similar out of the ordinary projects or matters. Files for Hourly Projects will only be opened with the approval of the City Council or the City Administrator. i C. Billing. The Attorney will bill the City monthly. The City will normally pay for services within thirty-five (35) days of receipt of a statement for services rendered. D. Minimum Billing Increment. The minimum billing increment for all services is two-tenths (2/1Oths) of an hour. E. Costs. Out-of-pocket costs without mark-up. Costs include: • Recording fees • Postage of 50¢ or more • Photocopies at 20¢ per copy • Litigation expenses (court filing fees, expert witnesses, acquisitions, subpoenas, service of process, etc.) • Mileage 4. INSURANCE. The Attorney will purchase and maintain sufficient insurance to protect Attorney against claims for legal malpractice. 5. MISCELLANEOUS, A. Governing Law. This Agreement shall be governed by the laws of the State of Minnesota. B. Assignment. The Attorney may not assign this Agreement without the consent of the Elk River City Council. C. Fffective Date. This Agreement shall be effective as of January 1, 2013. This Agreement shall not be modified or amended without the approval in writing of both parties. Dated: 2013 Dated: 2013 CITY OF ELK RIVER PETEWK. B, CK A TTORNEY AT LAW PLL By: By: John Dietz, Mayor Peter K. Beck AND Tina Allard, City Clerk 659853.DOCX 2 AGREEMENT FOR LEGAL SERVICES BETWEEN THE CITY OF ELK RIVER AND HAWKINS &BAUMGARTNER,P.A. THIS AGREEMENT, effective this day of , 2013, by and between the CITY OF ELK RIVER, a Minnesota municipal corporation("City") and HAWKINS & BAUMGARTNER,P.A., a Minnesota Corporation("Attorney"). NOW, THEREFORE, in consideration of the mutual undertakings herein, the parties hereto agree as follows: 1. SERVICES AND RELATIONSHIP. A. The Attorney shall furnish and perform municipal criminal prosecution legal services for the City. Such work shall include attendance at arraignments, court trials, omnibus hearings, Rule 5/8 hearings, in-custody appearances, pretrial conferences, jury trials, appellate representation, preparation of criminal complaints and all other work related to municipal criminal prosecutions. Such work may include zoning prosecution, zoning enforcement, vehicle forfeitures, and other work as directed by the City. B. The Attorney shall be engaged as an independent contractor and not as a City employee. Legal services shall be supervised by Scott C. Baumgartner and will be provided by Scott C. Baumgartner and any other attorney licensed to practice law in Minnesota that may be hired during the term of this Agreement by the Attorney and approved by the City. 2. TERM. A. The initial term of this Agreement shall be from July 1, 2013, to and including June 30, 2017 ("Term"), unless terminated earlier as provided in Section 6 herein. The Agreement shall automatically renew for subsequent one year terms unless cancelled pursuant to Section 6. 1 3. FEES. Attorney will provide criminal prosecution legal services to the City and, upon request by the City, will handle City Code violations before criminal charges are filed, at the following hourly rates: Attorneys Time- $95.00 per hour Paralegal Time - $45.00 per hour Rates may be increased one time per year at the time of renewal of this Agreement upon agreement of the parties. The Attorney will not charge for travel time between Anoka and Elk River. Itemized invoices describing the work and time of the Attorney shall be submitted monthly to the City. The City shall pay said invoices within thirty(30)days after receipt. 4. EXPENSES. In addition to the fees in paragraph 3, the City shall reimburse Attorney for the following expenses: A. Mileage- $12.00 flat fee per round trip B. Court filing fees C. Process services fees which are charged at the actual rate by the provider D. Any other out-of-pocket costs that Attorney incurs in handling criminal prosecution services for the City. 5. INDEMNIFICATION INSURANCE. The Attorney agrees it will defend, indemnify and hold harmless the City, its officers and employees against any and all liability, loss, costs,damages, expenses which the City, its officers or employees may hereafter sustain, incur or be required to pay, arising out of the Attorneys' performance or failure to adequately perform its obligations pursuant to this Agreement. Attorney further agrees that in order to protect itself as well as the City under the indemnity provision set forth herein, it will at all times during the Term of this Agreement maintain legal malpractice insurance in the amount of$300,000.00 per claim with a $900,000.00 aggregate limit. 2 6. CANCELLATION. This Agreement may be cancelled by the City with or without cause at any time by written notice to Attorney. This Agreement may be canceled by Attorney with or without cause upon ninety (90) days written notice to City. 7. SUBCONTRACTING ASSIGMENT. The Attorney shall not enter any subcontract for performance of any services contemplated under this Agreement without the prior written approval of the City and subject to such conditions, provisions, and approval as the City may deem necessary. 8. COMMUNICATION PLAN AND PERFORMANCE REVIEW. The Attorney agrees that it will meet upon request of and as needed with the City Administrator and Chief of Police to discuss current prosecuting issues. The Attorney agrees to meet quarterly with the Elk River City Administrator, Elk River Chief of Police or such other persons designated by the City Council to review the performance of Attorneys' work under this Agreement. 9. MISCELLANEOUS. A. Governing Law: This Agreement shall be governed by the laws of the State of Minnesota. B. Conflicts: Attorney shall not accept representation of any new clients that will constitute a conflict of interest with the City. C. Effective Date: This Agreement shall become effective as stated in Section 2. This Agreement shall not be modified or amended without the approval in writing of the City and Attorney. 3 CITY OF ELK RIVER Dated: , 2013 By: Mayor By: City Clerk HAWKINS & BAUMGARTNER, P.A. Dated: , 2013 By: Scott C. Baumgartner 4