36-10 ResolutionRECORD OF RESOLUTIONS
Inc.. Farts N.. 30045
Resolution No.
36 -10
Passed
A RESOLUTION AUTHORIZING THE CITY MANAGER
TO ENTER INTO A CONTRACT FOR THE PROVISION
OF LEGAL SERVICES
WHEREAS, Law Director Stephen J. Smith has agreed to enter into a
contract to provide legal services to the City of Dublin; and
WHEREAS, Dublin City Council has reviewed the terms of the contract
attached hereto as Exhibit 'A" commencing September 1, 2010 and
continuing through December 31, 2011 and determined the terms to be
acceptable.
20
NOW, THEREFOR BE IT RESOLVED by the Council of the City of Dublin,
State of Ohio, of the elected members concurring that:
Section 1 . The City Manager is hereby authorized to enter into the attached
agreement with Stephen J. Smith, attorney, for the provision of legal services
to the City of Dublin in accordance with the terms approved by Council.
Section 2 . This Resolution shall take effect and be in force from and after
the earliest date permitted by law.
Passed this o3Yd day of ,5 f 2010.
Mayor — PreE ng Officer
ATTEST:
Clerk of Council
CITY OF DUBLIN.
Office of the City Manager
5200 Emerald Parkway • Dublin, OH 43017
Phone: 614 - 410 -4400 • Fax: 614 -410 -4490
To: Members of Dublin City Council
From: Terry D. Foegler, City Manager
t
Date: August 19, 2010
Re: Resolution 36 -10 - Contract with Law Director
Background
Memo
The Law Director has been providing services to the City based upon the terms of the three -year contract
approved by Council in 2006. In May of 2009, Council authorized that this contract be extended on a month
to month basis until a new legal services agreement was approved and executed.
As Council is aware, the Administration has conducted a comprehensive review of the City's use of third
parry legal services over the past ten years. This review has focused primarily on the cost trends associated
with separately billed legal services, which have been primarily attributable to the City's right -of -way
acquisition, litigation, telecommunications, and labor and employment activities. The existing contract did
not fully reflect the billing arrangements which had emerged over the past five years regarding the clear
delineation of those services to be included within the monthly Routine Service fee, and those legal services
which would be deemed as additional, separately billed services.
The proposed contract provides much more clarity regarding those services that will be included in the so-
called "Routine Services" and "Non- routine Services" (those which are billed separately as additional
services). Attached is the recommended contract between the City and Law Director for legal services, and a
marked -up version of the agreement, which reflects the proposed changes to the current agreement. The
contract includes the following main provisions:
1. Routine Services provided at $68,000 per month (currently $66,000);
2. Mayor's Court and Franklin County Municipal Court Services provided at $10,000 per month
(currently $10,250);
3. Areas of Non - Routine Services are more clearly defined, and a negotiated rate will be determined,
based upon the approval of the City Manager prior to the commencement of services.
The additional $2,000 monthly cost for Routine Services includes the provision of a range of employment -
related legal advice which has previously been billed as a Non - Routine Service.
The proposed agreement includes many other new provisions, some designed to help the City better
understand how it is using its legal services. The Administration is recommending that the agreement run
through December 31, 2011 so that Routine service utilization trends can be more fully assessed.
Recommendation
Staff recommends approval of Resolution 36 -10, authorizing the City Manager to execute a contract with
Stephen J. Smith for legal services, commencing September 1, 2010.
AGREEMENT BETWEEN THE CITY OF DUBLIN
AND STEPHEN J. SMITH/SCHOTTENSTEIN, ZOX & DUNN
FOR SERVICES AS LAW DIRECTOR
This contract for the services of Law Director between the City of Dublin, an Ohio
Municipal Corporation, ( "Dublin ") and Stephen J. Smith/Schottenstein, Zox & Dunn, ( "Law
Director "), effective this 1st day of September 2010.
WITNESSETH
WHEREAS, Dublin and the Law Director wish to continue their professional
relationship until December 31, 2011,
NOW, THEREFORE, intending to be bound by this Agreement, the parties agree as
follows:
1. Routine Services
Except as otherwise provided herein, the Law Director agrees to provide and Dublin
agrees to pay for the following "Routine Services" at the rate of $68,000.00 per month.
a. Attendance at all Council meetings.
b. Attendance at all Planning and Zoning Commission meetings.
c. Attendance at other routine board and commission meetings upon the request of the
chairman or upon request of the City Manager.
d. Drafting of ordinances and resolutions arising in the normal course of municipal
operation upon request of the City Manager or Staff, or as requested by action of City
Council.
e. Representing the City in all administrative hearings and general litigation. General
litigation shall be defined as administrative (Chapter 2506) appeals from Dublin
boards and commissions to the common pleas court level.
f All other routine written documents, legal memoranda, and legal opinions as
requested by the City Manager, Staff and /or Council subject to prior approval of the
City Manager.
g. Providing legal advice relating to matters of public law to City officials as necessary
or upon request, and attending meetings and /or conferences as requested by City
officials.
{x19812361 > 1
h. Responding to City Manager and Staff inquiries about legal matters.
Review, approval and /or preparation of all contracts, ordinances, and legal
documents.
j. Land acquisition shall be a part of Routine Services on matters defined as normal real
estate contractual issues. However, other land acquisition matters of a special or
more complex nature (for example those with more complex economic development
terms embodied within the real estate agreement) will be handled on a case by case
basis, and may be subject to separate billing, as provided under "Non- Routine
Services ", with prior approval of the City Manager as to rates and staffing. Regarding
ROW land acquisition being carried out under the City's Eminent Domain authority,
all steps in the ROW acquisition process through the presentation of an offer(s) to
purchase, the receipt of counter offer(s), and all early negotiations up to the filing and
prosecuting an appropriation case will be considered Routine Services.
k. Termination counseling, FLMA, ADA, ADEA, FLSA, Title VII, PPACA, Workers'
Compensation statutes, Collective Bargaining statutes, USERRA, COBRA, and
HIPAA related questions, and other general legal advice related to labor and human
resource matters shall be included as Routine Services.
1. All matters related to Annexation.
m. Other normal City matters requiring legal input or involvement, not specifically
described under "Non- Routine Services ".
2. Non - Routine Services
The following legal services shall be classified as "Non- Routine Services ", and will be
separately billed, at rates as approved by the City Manager.
a. Labor and Employment: Legal services provided for collective bargaining
negotiations, fact finding, and conciliation, grievance arbitration, charges of
discrimination, and lawsuits related to labor and employment issues.
b. Telecommunications: Advisory and legal services related to Dublin's
telecommunications activities, including matters associated with Dublink, PUCO,
leasing for space for cell towers, cable television negotiations, telephone and internet
contracting, ROW management, Broadband Council.
c. Eminent Domain: As provided under "Routine Services ", all steps in the ROW
acquisition process through the presentation of an offer(s) to purchase, the receipt of
counter offer(s), and all early negotiations up to the filing and prosecuting an
appropriation case will be considered Routine Service. All legal services associated
with filing and prosecuting of an appropriation case, including but not limited to
written discovery, dispositions, mediation, and trial shall be billed separately as Non-
{x19812361 > 2
Routine Services" at hourly rates, as approved in advance of the work by the City
Manager.
d. Litigation: Complex litigation is not included within "Routine Services" and will be
billed separately. Complex litigation will be defined as major litigation that involves,
for example purposes only, significant written or oral discovery, significant motion
practice, and attendance at hearings before a judge and/or a jury. Complex litigation
shall also include Chapter 2506 appeals that proceed past the common pleas level
All rates for complex litigation shall be pre- approved by the City Manager prior to the
Law Department commencing work on any individual matter. Applicable rates will
be negotiated at the time the complex litigation arises and will be based upon staffing
needs and selection of legal expertise by the City Manager.
e. Special Projects: Subject to agreement of both parties, the Law Director shall
undertake specific projects on a flat fee basis. Such flat fee projects shall be as
agreed upon by the Law Director, and the City Manager.
Special Counsel: The Law Director may utilize the services of other attorneys both
within his firm and outside his firm as Assistant Law Director, Prosecutor and /or
Special Counsel, subject to the City Manager's prior approval as to individual cases,
attorneys and fee arrangements.
3. Mayor's Court Services
The Law Director shall serve as the City's prosecutor for cases before Mayor's Court and
for traffic and criminal matters in Franklin County Municipal Court. These services shall
be provided at the rate of $10,000 per month.
4. Term.
This contract shall take effect and be in force from September 1, 2010 through December
31, 2011. However, at any point during the term of this Contract, either Party may
terminate this Agreement upon providing sixty (60) days' notice of its intent to terminate
to the other Party.
5. Miscellaneous Provisions
a. Indemnification:
• Professional Liability. Relative to any and all claims, losses, damages, liability
and cost, the Law Director agrees to indemnify and save the City, its officers,
officials, and employees harmless from and against any and all suits, actions or
claims for property losses, damages or personal injury arising from the negligent
acts, errors or omissions by the Law Director or his employees.
{x19812361 >
• Non - Professional Liability (General Liability). To the fullest extent permitted by
law, the Law Director shall indemnify, defend and hold harmless the City, its
officers, officials, employees or any combination thereof, from and against
claims, damages, losses and expenses, including but not limited to attorneys' fees,
arising out of the acts or omissions of the Law Director, provided that such claim,
damage, loss or expenses is attributable to bodily injury, sickness, disease or
death, or to injury to or destruction of property (other than the work itself)
including loss of use resulting therefrom, but only to the extent caused by the
negligent acts or omissions of the Law Director, any subconsultant(s) of the Law
Director, his agents, or anyone directly or indirectly employed by them or anyone
for whose acts they may be liable, regardless of whether or not such claim
damage, loss or expense is caused in part by a party indemnified hereunder. Such
obligations shall not be construed to negate, abridge, or reduce other rights or
obligations of indemnity which would otherwise exist as to a party or person
described in this paragraph.
b. Insurance Requirements: The Law Director shall maintain the insurance coverage
limits specified in Exhibit A throughout the term of this Agreement.
c. Expenses and Disbursements: In addition to charges for professional services as
described above, the Law Director may charge the City for expenses incurred on its
behalf. These expenses may include but are not limited to the following examples:
duplication and binding of documents; telecopy, telex, fax and long distance
telephone calls; messengers, couriers and postal services; expenses for computerized
legal research and other automated services; and other business expenses as approved
by the City Manager. In addition, the Law Director's services frequently require
engaging the services of third parties on the City's behalf. Generally, the City will be
asked to pay such third parties directly, provided that, whenever possible, the City
Manager shall approve in advance the third party service provider, and the cost of
those third party services. Where relatively small amounts of money are involved (as
determined by the City Manager), the Law Director may advance payments to third
parties and include them in his periodic bills. These smaller disbursements include
the following types of expenses: state agency filing fees; outside duplication of
documents; fees for commencing lawsuits and service of process; deposition and
court stenographer fees; expert witness and consultant fees; real estate recording fees
and taxes; Uniform Commercial Code search fees; and, in general, any fees or
charges the Law Director pays to governmental or quasi - governmental agencies.
d. All invoices for legal services (including those for Routine Services, Non - Routine
Services, Mayor's Court and prosecutorial services at Franklin County Municipal
Court) shall include a detailed itemization of the work tasks performed during that
billing period, the person performing the work, the billing rates (where applicable)
and the time spent on each task. The invoice shall be organized by related work
categories and /or projects, as specified by the City Manager.
{x19812361 > 4
e. The Law Director shall provide an estimated budget for the projected costs (or cost
range) associated with potential litigation, The City and the Law Director
acknowledge the uncertainty and volatility associated with such estimates, which are
intended for use in the City's budgeting and risk assessment purposes.
It shall be the responsibility of the Law Director to pay for any and all municipal
publications, services, updates, seminars, conferences, etc. that he or his office may
utilize or attend on Dublin's behalf.
g. In the event that the Law Director becomes incapacitated, is for any other reason
unable to perform his duties or no longer serves as Law Director, it is hereby agreed
that his files and records shall become Dublin's property except for information
which would be classified as work product under Ohio law, which the Law Director
shall, upon direction of the City Manager, release to an attorney designated by the
City Manager.
IN WITNESS WHEREOF, the parties have executed this Agreement.
STEPHEN J. SMITH /SCHOTTENSTEIN, ZOX
& DUNN
Stephen J. Smith, Law Director
CITY OF DUBLIN
Terry Foegler, City Manager
{x19812361 >
AGREEMENT BETWEEN THE CITY OF DUBLIN
AND STEPHEN J. SMITH/SCHOTTENSTEIN, ZOX & DUNN
FOR SERVICES AS LAW DIRECTOR
This contract for the services of Law Director between the City of Dublin, an Ohio
Municipal Corporation, ( "Dublin ") and Stephen J. Smith/Schottenstein, Zox & Dunn, ( "Law
Director "), effective this 1st day of As 200 Sentember 2010.
WITNESSETH
WHEREAS, Dublin and the Law Director wish to continue their professional
relationship for ° t ree (3` yea_ peried until December 31. 2011
NOW, THEREFORE, intending to be bound by this Agreement, the parties agree as
follows:
1. Routine Services
Except as otherwise provided herein, the Law Director agrees to provide and Dublin
agrees to pay for the following fettline sew vices "Routine Services" at the rate of
$46,440-04 per month.
a. Attendance at all fegulaf-C meetings.
b. Attendance at all f:ag ulaf Planning and Zoning Commission meetings.
c. Attendance at other routine board and commission meetings upon the request of the
chairman or upon request of the City Manager.
d. Drafting of ordinances and resolutions arising in the normal course of municipal
operation upon request of the City Manager or Staff or as reauested by action of Citv
Council
e. Representing the City in all administrative hearings and general litigation. General
litigation shall be defined as administrative (Chapter 2506) appeals from Dublin
boards and commissions to the common pleas court level.
f All other routine written documents -ate legal memoranda and legal opinions as
requested by the City Manager, Staff and /or Council subject to prior approval of the
City Manager.
g. Providing legal advice relating to matters of public law to City officials as necessary
or upon request, and attending meetings and /or conferences as requested by City
officials.
1
h. Responding to City Manager and Staff inquiries about legal matters
i. Review -a+4 approval and/or preparation of all contracts, ordinances, ete legal
documents
j. Land acquisition shall be a part of general esRoutine Services on matters
defined as normal real estate contractual issues. However, other land acquisition
matters of a special or more complex nature for example those with more complex
economic development terms embodied within the real estate agreement) will be
handled on a case by case basis and may be subject to separate billing, as provided
under "Non- Routine Services ". with prior approval of the City Manager as to rates
and staffing. Regarding ROW land acquisition being carried out under the City's
Eminent Domain authority, all steps in the ROW acquisition process through the
presentation of an offer(s) to purchase, the receipt of counter offer(sl. and all early
negotiations up to the filing and prosecuting an appropriation case will be considered
Routine Services.
k. Termination counseling, FLMA, ADA, ADEA, FLSA, Title VII, PPACA, Workers'
Compensation statutes, Collective Bargaining statutes, USERRA, COBRA. and
HIPAA related questions, and other general legal advice related to labor and human
resource matters shall be included as Routine Services.
1. All matters related to Annexation.
m. Other normal City matters requiring legal input or involvement_ not specifically
described under "Non- Routine Services ".
e "Im :i
The following legal services shall be classified as "Non- Routine Services ", and will be
separately billed, at rates as approved by the City Manager.
a. Labor and Employment: Legal services provided for collective bargaining
negotiations, fact finding, and conciliation, grievance arbitration, charges of
discrimination, and lawsuits related to labor and employment issues.
b. Telecommunications: Advisory and legal services related to Dublin's
telecommunications activities, including matters associated with Dublink. PUCO
leasing for space for cell towers, cable television negotiations, telephone and internet
contracting, ROW management_ Broadband Council.
c. Eminent Domain: As provided under "Routine Services ", all steps in the ROW
acquisition process through the presentation of an offer(s) to purchase. the receipt of
2
counter offer(s), and all early negotiations up to the filing and prosecuting an
appropriation case will be considered Routine Service. All legal services associated
with filing and prosecuting of an appropriation case, including but not limited to
written discovery, dispositions, mediation, and trial shall be billed separately as Non -
Routine Services" at hourly rates, as approved in advance of the work by the City
Manager.
d. Litigation - : Complex litigation is not included within "Routine Services" and will
be billed separately. Complex litigation will be defined as major litigation that
involves, for example purposes only, significant written or oral discovery, significant
motion practice, and attendance at hearings before a judge and /or a jury. Complex
litigation shall also include Chapter 2506 appeals that proceed past the common pleas
level °41a 'M i" p' "t a .. ain.._eeeeding, All rates for complex litigation shall be
pre- approved by the City Manager prior to the Law Department commencing work on
any individual matter. Applicable rates will be negotiated at the time the complex
litigation arises and will be based upon staffing needs and selection of legal expertise
by the City Manager.
e. Special Projects: Subject to agreement of both parties. the Law Director shall
undertake specific projects on a flat fee basis. Such flat fee projects shall be as
agreed upon by the Law Director, and the City Manager.
f. Counsel -: The Law Director will ka- @ t o r igI t temay utilize the services
of other attorneys both within his firm and outside his firm as Assistant Law Director,
Prosecutor and /or Special Counsel, subject to the City Manager's prior approval as to
individual cases . attorneys and fee arrangements.
3, Mayor's Court Services
The Law Director shall serve as the City's prosecutor for cases before Mayor's Court and
for traffic and criminal matters in Franklin County Municipal Court. These services shall
be provided at the rate of $10,000 per month.
4. Term,
4. TeFm. This contract shall take effect and be in force from 4ine 1, 2046September
1. 2010 through 1b4sy December 31, 2989.2011. However, at any point during the term of
this Contract, either Party may terminate this Agreement upon providing sixty (60) days''
notice of its intent to terminate to the other Party.
5. Miscellaneous Provisions
a.
prE)jeets en-a4qa*4�ee si.q �4rich #wee prE)jeets hall he agreed ui b
Pireeter and the Cit- Manage_ Indemnification:
• Professional Liability. Relative to any and all claims, losses, damages, liability
and cost, the Law Director agrees to indemnify and save the City, its officers
officials, and employees harmless from and against any and all suits, actions or
claims for property losses, damages or personal injury arising from the negligent
acts, errors or omissions by the Law Director or his employees.
• Non - Professional Liability (General Liability). To the fullest extent permitted by
law, the Law Director shall indemnify, defend and hold harmless the City its
officers, officials, employees or any combination thereof from and against
claims, damages, losses and expenses, including but not limited to attorneys' fees.
arising out of the acts or omissions of the Law Director, provided that such claim
damage, loss or expenses is attributable to bodily injury, sickness, disease or
death, or to injury to or destruction of property (other than the work itselfl
including loss of use resulting therefrom, but only to the extent caused by the
negligent acts or omissions of the Law Director, any subconsultant(s) of the Law
Director, his agents, or anyone directly or indirectly employed by them or anyone
for whose acts they may be liable, regardless of whether or not such claim
damage, loss or expense is caused in part by a party indemnified hereunder. Such
obligations shall not be construed to negate, abridge, or reduce other rights or
obligations of indemnity which would otherwise exist as to a party or person
described in this paragraph.
b. Mayef's Cotm4sep. all be h- ill ed as a 44 at rate 18-4444tift4 fee Of S!09000-.W,
. a 4l @ in @ ..al Mon l i ns t a l I -M- A 444., T R,.«,.,.. Or ,. 44 I ... Pir @ ,. t,.« 4.1...11 i44PrARqA
I 4eA+ d1 @ R 11 t «..4 R44,t P 1 - M-8 44,.«..:44 L rR-44 L7 :.4 9
n i tta i,.i pa l C ettt 4 ffi shall be paid $15 Pef year 4 )r that ,,,....:...Insurance
Requirements: The Law Director shall maintain the insurance coverage limits
specified in Exhibit A throughout the term of this Agreement.
c. Expenses and Disbursements: In addition to charges for professional services as
described above, the Law Director may charge the City for expenses incurred on its
behalf. These expenses may include but are not limited to the following examples:
duplication and binding of documents: telecopy, telex, fax and long distance
telephone calls; messengers, couriers and postal services; expenses for computerized
legal research and other automated services; and other business expenses as anproved
by the City Manager. In addition, the Law Director's services frequently require
engaging the services of third parties on the City's behalf. Generally, the Citv will be
asked to pay such third parties directly, provided that_ whenever possible. the City
Manager shall approve in advance the third party service provider. and the cost of
those third party services. Where relatively small amounts of money are involved (as
determined by the City Manager), the Law Director may advance payments to third
parties and include them in his periodic bills. These smaller disbursements include
the following types of expenses: state agency filing fees; outside duplication of
documents; fees for commencing lawsuits and service of process; deposition and
court stenographer fees; expert witness and consultant fees; real estate recording fees
4
and taxes: Uniform Commercial Code search fees: and, in general. any fees or
charges the Law Director nays to governmental or quasi- governmental agencies.
d. All invoices for legal services (including those for Routine Services, Non - Routine
Services, Mayor's Court and prosecutorial services at Franklin County Municipal
Court) shall include a detailed itemization of the work tasks performed during that
billing period, the person performing the work_ the billing rates (where applicable)
and the time spent on each task. The invoice shall be organized by related work
categories and /or projects, as specified by the Citu Manager.
e. The Law Director shall provide an estimated budget the projected costs (or cost
range) associated with potential litigation, The City and the Law Director
acknowledge the uncertainty and volatility associated with such estimates. which are
intended for use in the City's budgeting and risk assessment purposes.
f e. S .t to the fella ing pfav ision, itlt shall be the responsibility of the Law
Director to pay for any and all municipal publications, services, updates, seminars,
conferences, etc. that he or his office may utilize or attend on Dublin's behalf.
4--In the event that the Law Director becomes incapacitated, is for any other reason
unable to perform his duties or no longer serves as Law Director, it is hereby agreed
that his files and records shall become Dublin's property except for information
which would be classified as work product under Ohio law, which the Law Director
shall, upon direction of the City Manager, release °'�ls to an attorney
designated by the City Manager.
IN WITNESS WHEREOF, the parties have executed this Agreement.
STEPHEN J. SMITH /SCHOTTENSTEIN, ZOX
& DUNN
Stephen J. Smith, Law Director
CITY OF DUBLIN
jane pra+1tigatrr Foegler City Manager
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ALAS
ATTORNEYS' LIABILITY ASSURANCE SOCIETY, INC.,
A RISK RETENTION GROUP
August 5, 2010
City of Dublin
5200 Emerald Parkway
Dublin, OH 43017
Attn: City Manager
CONFIRMATION OF INSURANCE
[ AIA a
We hereby confirm that Schottenstein, Zox & Dunn Co., L.P.A. has
Professional Liability Coverage under Policy ALA #1221 with an annual limit of
$20,000,000 per claim and $40,000,000 in the aggregate with the right, under
stated conditions, to purchase extended reporting rights upon termination of such
Policy by ALAS.
The self - insured retention under such Policy is $750,000 each claim up to
an aggregate of $1,500,000 and $100,000 each claim thereafter.
The Policy effective date is from January 1, 2010 to January 1, 2011.
Such Policy is subject to the terms, conditions, limitations and exclusions
stated therein.
ATTORNEYS' LIABILITY ASSURANCE SOCIETY, INC.
A RISK RETENTION GROUP
By: Z-4
Jo eph R. Suster
Date: K r 10
Assistant Director of Underwriting
S:ACONFIRMS 2010 \Schottenstein Zox_City of Dublin 080510.doc
311 South Wacker Drive, Suite 5700
Chicago, IL 60606 -6629
Tci 312.697.6900 fax 312697-6901 web site alas.com