HomeMy WebLinkAboutAgenda Report - December 7, 2005 E-13AGENDA ITEM Em 1
CITY OF LODI
COUNCIL COMMUNICATION
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AGENDA TITLE: Approve Fee Contract with Scott & Nichols for Representation of Officer Neis and
former Officer Foster in Peter Rose _et_al. v. the City of Lodi, et al.; United States
District Court, Eastern District of California, Case No.CIV.S-05-02229
MEETING DATE: December 7, 2005 City Council Meeting
PREPARED BY: City Attorney's Office
RECOMMENDED ACTION: Approve Contract for Outside Counsel to represent Officer Neis and
Former Officer Foster.
BACKGROUND INFORMATION: As you know, subject to certain conditions, public employees (both
current and former) are entitled to indemNty for their actions taken
in the course and scope of their duties under State Law.
(Government Code Section 995 et seq.) In addition, where an actual conflict of interest exists between
the employee and the entity, the entity must provide a separate attorney to represent the employee. A
mere potential conflict of interest does not require outside counsel. However in this case outside counsel
is advisable because of the nature of the allegations present significant conflicts for the City Attorney's
Office to manage in representing the officers and the City when our primary obligation is to protect the
interests of the City.
As you also know, the City is insured through CJPRMA with a $500,000 Self Insured Retention (SIR).
Since legal expenses are counted toward the SIR, they will not exceed $500,000 to the City over the life
of the action.
FISCAL IMPACT: Unknown at this time, but capped at $500,000 out of liability reserve account.
_ ..
City Attorney
APPROVED: r z `"
Blair ity Manager
AGREEMENT TO ENGAGE OUTSIDE LEGAL COUNSEL
BETWEEN THE CITY OF LODI AND
SCOTT & NICHOLS, A PROFESSIONAL CORPORATION
THIS AGREEMENT TO ENGAGE OUTSIDE COUNSEL (The "Agreement") is made
and entered into on this day of , 20 by and between the City
of Lodi (referred to as "City") and Scott & Nichols, A Professional Law Corporation
(referred to as "Scott & Nichols").
The City and Scott & Nichols agree as follows:
1. SCOPE OF REPRESENTATION
Scott & Nichols agree to represent the City of Lodi in connection with the pending case
of v. City of Lodi, et al.
Scott & Nichols will act in accordance with the City's instructions. Representation will
include, among other things, handling the referenced litigations and proceedings,
preparing appropriate court filings, making required appearances on behalf of the City,
participating in mediation sessions and providing such other assistance as may be
appropriate or as the City may request.
2. CHARGES FOR ATTORNEY SERVICES
For services performed by Scott & Nichols, the City agrees to pay, and Scott & Nichols
agrees to accept, compensation for time expended by attorneys at the rate of $175.00
per•house- i e--
3.
3. INITIAL ASSESSMENT
At the outset of the engagement, Scott & Nichols will undertake an initial evaluation of
the litigation and provide the City with an analysis of the case, including, but not limited
to, an evaluation of liability, damages, and other critical issues. Additionally, Scott &
Nichols will provide a proposed budget for the undertaking reasonably anticipated
expenses for professional fees and costs.
4. COMMUNICATIONS
The City has designated City Attorney Stephen Schwabauer as its primary point of
contact for purposes of this Agreement. W. Stephen Scott of Scott & Nichols will serve
as the primary point of contact with Scott & Nichols.
5. BILLING FORMAT AND FREQUENCY
Scott & Nichols will bill the City monthly for services rendered at the agreed rate. The
monthly statements will include any costs Scott & Nichols incurs on the City's behalf,
such as photocopying, postage, long distance telephone, courier services and
computerized legal services for legal research or document management.
Said charges will be consistent with the City's billings guidelines adopted February 23,
2004.
6. RETENTION OF EXPERT WITNESSES AND LITIGATION CONSULTANTS;
DIRECT PAYMENT OF MAJOR EXPENSES
Upon prior approval of the City, Scott & Nichols may enter into agreements with other
parties for purposes of providing expert witness services or litigation support and
consulting services for matters covered by this Agreement. The City agrees to provide
compensation directly to such parties. Examples of such services may include
photocopying of documents in excess of $250, document management services,
preparation of trial graphics and presentation aids, mock trick consulting services and
court reporter fees and videographer fees for depositions.
7. NOTICES
Any notice to a party to this Agreement must be in writing and addressed to the party at
the address set forth below or at such other addresses about which the parties may
notify each other from time to time.
TO THE CITY:
City of Lodi
D. Stephen Schwabauer
City Attorney
221 W. Pine Street
Lodi, CA 95240
TO SCOTT & NICHOLS:
W. Stephen Scott
Scott & Nichols
120 N. Hunter Street
Stockton, CA 95202
This Agreement shall be administered and interpreted under the laws of the State of
California. Jurisdiction of litigation arising from this Agreement shall be in that state. If
any part of this Agreement is found to conflict with applicable laws, such part shall be
inoperative, null and void insofar as it is in conflict with applicable laws, but the
remainder of this Agreement shall be in full force and effect.
No provision of this Agreement shall be construed for or against any parry on the basis
of its contribution of lack of contribution, to the drafting of such provision, and the
provisions of Section 1654 of the California Civil Code shall have no application to this
Agreement. The failure of any party to enforce any provision of this Agreement shall not
in any way be construed as a waiver of any such provision and shall not prevent that
party from thereafter enforcing such or any other provision of this Agreement.
8. INTEGRATION
This Agreement represents the entire understanding of the City and Scott & Nichols as
to those matters contained herein. No prior oral or written understanding shall be of
any force or effect with respect to those matters covered hereunder. This Agreement
may not be modified or altered except in writing, signed by both parties.
CITY OF LODI
Signature
Printed Name
Title
Date
APPROVED AS TO FORM:
D. Stephen Schwabauer
City Attorney B!��
ATTEST:
Susan J. Blackston
City Clerk
SCOTT & NICHOLS
Professional Law Corporation
Signature
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Printed Name
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Title .� a �, =.�_
Date