Representing Management Exclusively in Workplace Law and Related Litigation Jackson Levis P.C. ALBANY, NY GREENYULE, SC MONMOUTH COUNTY, N) RALEICH, NC 400 Capitot Mal! ALBUQUERQUE, NM MARTFORD, C MONKISTOWN, NI RAMD CITY, 5D jackson lewis Suite 1600 ATLANTA, Gi NEW ORLEANS, LA KICHMOND, VA . Sacramento, Callomia 95814 AUSTIN X HOUSTON, IX NEW YORK, NY SACRAMENTO, CA
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SANFRANCISCO, CA
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'sough at flation wal Juck Lewis PC. Li Cosporation
November 7, 2018
PERSONAL & CONFIDENTIAL
ATTORNEY-CLIENT PRIVILEGED
ATTORNEY WORK PRODUCT
Steven S. Carrigan
City Manager
City of Merced
678 West 18th Street
Merced, CA 95340
[email protected]
Re: Confirmation of Engagement and Fee Agreement •
for Legal Services
Dear Mr. Carrigan:
We are pleased that the City of Merced (the "City") has retained Jackson Lewis ?.C. (the "Firm") for legal services in connection with advice and counseling regarding the City's ! labor and employment issues, and defense of various ERMA-covered matters. This letter details the scope of our client relationship and outlines the fees for our services.
A. Scope of Services
We will represent the City in connection with ERMA-covered claims and any requested general employment advice and counseling. We will do our best to serve the City efficiently. While we cannot guarantee the success or outcome of any given matter, we will strive to vigorously represent the City.
B. Fees
We charge for our time on an hourly basis, broken down to one-tenth hour increments. For ERMA-covered matters, our discounted hourly rates are $290 for principals, $275 for Of Counsel; $230 for associates and $95 for paralegals. If we are asked to provide services for non-ERMA matters, we will provide those services at the firm's discourted public sector rates of Steven S. Carrigan
City of Merced
jackson|lewis. November 7, 2018
Page |2
$350 for principals and $290 for associates. The hourly rates may be subject to periodic increases.
Any changes in billing rates will be reflected in the invoice after any revised rates go into effect.
I will have primary responsibility for handling your matters and will be working an associate and with such other attorneys of our firm to represent the City effectively and efficiently. We charge for all services rendered, including but not limited to, telephone calls, conferences, court and agency hearings and other proceedings subject to the carrier's billing guidelines.
C. Client Cooperation
The City understands and agrees that, in order for the Firm to represent it effectively, it is necessary for the City to assist and cooperate with the Firm. The City agrees to 1) make itself (including its employees if applicable) available to discuss issues as they arise in this matter; (2) attend and participate in meetings, preparation sessions, court proceedings and other activities in connection with the representation; (3) provide complete and accurate information and documents to us on a timely basis; (4) make timely payment to any experts or vendors retained in connection with our services; and (5) advise whether there is an agreement to arbitrate the subject claims), either as set forth in a stand-alone arbitration agreement, an employee handbook, an employment application or otherwise.
D. Protection of Client Confidences - High Tech Communication Devices We are always mindful of our central obligation to preserve the secrets and confidences of our clients. To that end, it is important that we agree from the outset what kinds of communications technology we will employ in the course of this Engagement. Unless the City specifically directs us to the contrary, for purposes of this Engagement, the City agrees that it is appropriate for us to use fax machines and e-mail in the course of the Engagement without any encryption or other special protections. In that regard, if there is a specific e-mail address which you would like us to use to communicate with you, other than your current City e-mail address, please let us know. Please also notify the Firm if the City has any other requests or requirements in connection with the methods of telecommunication, or persons to be included or copied in the circulation of documents relating to the Engagement.
E. Termination of Representation
The City may terminate this representation at any time, with or without cause. We also reserve the right to withdraw at any time to the fullest extent permitted by the applicable ethical rules. Any termination of our representation of the City would be subject to such approval as may be required from any courts) in which we are appearing on its behalf. In the event of termination by either the City or us, fees and costs for work performed prior to termination will still be payable as provided for in this letter.
Following any termination of representation, client files will be released only following delivery to the Firm of a signed release letter containing appropriate directions and an knowledgment of the obligation to pay outstanding fees. Subject to the carrier's billing uidelines. the City will be charged for the reasonable costs of retrieval, assembly; copying processing and transfer of all files or materials, including ESI.
Steven S. Carrigan
City of Merced
jackson lewis. November 7, 2018
Upon termination of our representation of the City, the Firm reserves the right to maintain the City's legal file in electronic format only.
F. Preservation of Documentation
As the City has received claims, as discussed, the City must take immediate steps include any and all relevant surveillance tapes and recordings.
The City must also immediately suspend any document retention/destruction policy and put in place a "Litigation Hold." This Litigation Hold is designed to ensure that relevant electronic evidence is preserved and not destroyed, altered, modified, disposed of, or in any way compromised. Therefore, any individuals who may have relevant information or documents related to a matter must comply with this litigation hold.
Although this may seem like an onerous task, document retention is critical for the defense of a matter and to ensure the City complies with its legal obligation to preserve and produce relevant information. A failure to preserve documents or electronic data could have dire consequences in a matter. For example, in addition to monetary sanctions, the City may be precluded from using certain evidence at trial or the court may allow a jury to draw negative interences against the City. Under a worst case scenario, the court may award a judgment in favor of the claimant. Therefore, if the City has any doubt regarding whether paper or electronic data falls within the scope of a "Litigation Hold", it should err on the side of preservation and contact uS.
G. Potential Insurance Coverage
As employment defense counsel, the Firm cannot provide an opinion with respect to the extent or terms of the City's coverage under any coverage memorandum or employment practices liability insurance, directors and officers or other insurance policies or programs, (on an ongoing basis or otherwise). We urge the City to review this matter with other legal counsel, its insurance broker or anyone else with whom the City wishes to discuss the possibility of other insurance being applicable c.g., an excess liability insurance policy, homeowners or personal insurance or any other form or kind of insurance, including workers compensation insurance. As with any insurance policy, prompt and complete notice should be given, as required by the policy and by applicable law. Failure to do so could adversely affect the existence of or eligibility for any insurance coverage.
Steven S. Carrigan
City of Merced
jackson|lewis. November 7, 2018
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Again, please review and address any policy conditions, terms, or exclusions regarding the subject claims), including applicable coverage policy limits (or sublimits) (which may apply either per claim, or in the aggregate), or any notice or other requirements concerning bordereau arrangements, with the City's carriers), insurance broker, or legal counsel. Please also immediately advise us when any applicable policy limits or sublimits are met, or presently will be met, or it coverage is denied.
H. Dispute Resolution
The City of Merced and Jackson Lewis P.C. agree that any dispute between us arising out of, or relating to, this agreement, or the breach thereof, shall be resolved by binding arbitration between the parties. This includes, but it not limited to any claims regarding attorney's fees or costs under this agreement or regarding a claim of attorney malpractice, that is, whether any legal services Jackson Lewis P.C. has rendered, under this agreement or otherwise, were improperly, negligently, or incompetently rendered, or otherwise rendered in breach of a contractual or ethical duty.
The City understands and acknowledges that, by agreeing to binding arbitration, it waives and thereby eliminates the right to submit the dispute for determination by a court and thereby also waives the right to a jury trial. The City acknowledges that it has been informed that the grounds for appeal of an
arbitration award are very limited compared to a court
judgment or jury verdict. Consequently, the City should carefully consider whether arbitration is acceptable to it and should consult with independent counsel.
1. Arbitration of All Disputes.
Except as stated in subparagraph 2 below, the City and Jackson Lewis P.C. agree hat all disputes between them shall be resolved by binding arbitration with the America Irbitration Association in accordance with the AAA's then current commercial arbitration rules The dispute will be resolved by a single arbitrator to be selected by the parties. The arbitrator must be an attorney in good standing in California. The parties agree that a judgment of the court shall be entered upon the award made by the arbitrator. The cost of the arbitration shall be shared by the parties, but the arbitrator shall have the right to allocate costs in the final award. The Federal Arbitration Act shall govern this provision.
2. State Bar Arbitration.
Notwithstanding subparagraph 1, above, in any dispute subject to the jurisdiction of the State of California over attorneys' fees, charges, costs, or expenses, the City has the right to elect arbitration under the fee arbitration procedures of the State Bar of California, as set forth in California Business and Professions Code section 6200, et seq. Those procedures permit a trial after fee arbitration, unless the parties agree in writing, after the dispute has arisen, to be bound by the fee arbitration award. If, after receiving a notice of your right to arbitrate, you do not elect to Steven S. Carrigan
City of Merced
jackson lewis. November 7, 2018
Page|s
:
proceed under the State Bar fee arbitration procedures and file a request for fee arbitration within 30 days, any dispute over fees, charges, costs or expenses will be resolved by binding arbitration as provided in the above paragraph 1. In addition, any trial after fee arbitration shall be pursued in arbitration under subparagraph 1 as set forth above. * * *
If the foregoing is acceptable to the City, please sign below and return a copy of this letter to me.
If you have any question at any time regarding the scope of our representation, the handling of any matter or the content of any invoice, please contact me at once. We are pleased to be of service to the City.
Very truly yours,
JACKSON LEWIS P.
Michael J. Christian
Enclosure
ATTEST:
Agreed to and Accepted by: CITY CLERK
City of Merced
By: Steven S. Carrigan Assistant/Deputy City Cierk
Title: City Manager
Date: 11/29118
1833 04040142, + t
300791 PO# 132694
Vanes 11727/8
FINANCE OFFICE DATE V- 2692
Funds available, MS 11127118
(072-0402-512-17-00 FR''/zal18
$15,000.00
:
Steven S. Carrigan
City of Merced
jackson|lewis. November 7, 2018
Page |5
proceed under the State Bar fee arbitration procedures and file a request for fee arbitration within 30 days, any dispute over fees, charges, costs or expenses will be resolved by binding arbitration as provided in the above paragraph 1. In addition, any trial after fee arbitration shall be pursued in arbitration under subparagraph 1 as set forth above. * *
If the foregoing is acceptable to the City, please sign below and return a copy of this letter to me.
If you have any question at any time regarding the scope of our representation, the handling of any matter or the content of any invoice, please contact me at once. We are pleased to be of service to the City.
Very truly yours,
MIC:nw
Enclosure
Agreed to and Accepted by:
City of Merced
By: Steven S. Carrigan
Title: City Manager
Date:
2533-9404-2H2.v.1
APPROVED AS TO FORM: 300791 PO#132696
FUNDS/ACCOUNTS VERIFIED
lisa 71/27/68
KELLY C. FINCHER INANCE OFFIC DATE V- 12692
Chief Deputy City Attorney Funds avarlable, ma Tl27/i8
472-0402-512-14-00 pa 1/27/18
#15,020.00