Resolution No. 8789
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RESOLUTION NO. 8789
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
VERNON APPROVING AND AUTHORIZING THE EXECUTION OF
AN AMENDED AND RESTATED EMPLOYMENT AGREEMENT BY AND
BETWEEN THE CITY OF VERNON AND ERIC T. FRESCH
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WHEREAS, commencing in June 1986, and at various times from
that date, including July 26, 2000, the City Council and the Finance
Committee Section of the City Council of the City of Vernon adopted
Resolution No. 7576, as amended by Resolution Nos. 7915~ 8049 and 8386
on February 27, 2002, September 4, 2002 and February 18, 2004,
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respectively, approving an agreement for legal, financial and
administrative consulting services with Eric T. Fresch ("Fresch")
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(collectively, the "Prior Agreements); and
WHEREAS, the City desires to adopt an amended and restated
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employment agreement in order to modify and clarify the parties'
relationship and obligations; and
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WHEREAS, the Amended and Restated Employment Agreement is
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intended to supersede the Prior Agreements; and
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WHEREAS, the City Council of the City of Vernon has
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determined that, pursuant to the provisions of subsection (a) of
Section 2.27 of the Vernon City Code, it is in the public interest and
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necessity to enter into an amended and restated agreement with Fresch.
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NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF VERNON AS FOLLOWS:
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SECTION 1:
The City Council of the City of Vernon hereby
26 finds and determines that the recitals contained hereinabove are true
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SECTION 2:
The City Council of the City of Vernon hereby
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1 approves the Amended and Restated Employment Agreement with Eric T.
2 Fresch and retains Eric T. Fresch as the City Attorney of the City of
3 Vernon on the terms and conditions that are mutually acceptable to
4 both parties.
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SECTION 3:
It is the intent of the City Council of the City
6 of Vernon that the Amended and Restated Employment Agreement with Eric
7 T. Fresch shall supersede the Prior Agreements.
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SECTION 4:
The City Council of the City of Vernon hereby
9 authorizes the Mayor to execute said Amended and Restated Employment
10 Agreement for, and on behalf of, the City of Vernon and the City Clerk
11 is hereby authorized to attest thereto.
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SECTION 5:
The City Council of the City of Vernon hereby
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directs the City Clerk, or his designee, to send one fully executed
Amended and Restated Employment Agreement to:
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Eric T. Fresch
4305 Santa Fe Avenue
Vernon, California 90058
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SECTION 6:
The City Clerk of the City of Vernon shall
19 certify to the passage of this resolution, and thereupon and
20 thereafter the same shall be in full force and effect.
21 APPROVED AND ADOPTED this 29th day of June, 2005.
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~hU~) ,
~ LEONIS 'C. MAL RG, M yor
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ATTEST:
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BRUCE V. MALKENHORST,-G~~y-
Acting City Clerk
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1 STATE OF CALIFORNIA
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COUNTY OF LOS ANGELES
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I, BRUCE V. MALKENHORST, City Clerk of the City of Vernon, do
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hereby certify that the foregoing Resolution, being Resolution No.
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8789, was duly adopted by the City Council of the City of Vernon at an
adjourned regular meeting of the City Council duly held on Wednesday,
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June 29, 2005, and thereafter was duly signed by the Mayor of the City
of Vernon.
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CE V. MALKENHORST,-e~ty-ererk-
Acting City Clerk
( SEAL)
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. SUPPORTING
DOCUMENTS
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This Amended and Restated Employment Agreement is entered into as of July 1,2005
(the "Effective Date"), by and between THE CITY OF VERNON, a municipal corporation,
("City") and ERIC T, FRESCH, an individual ("Fresch), based on the following facts and
circumstances:
A. The City and Fresch entered into an agreement for legal and financial consulting
services in June, 1986, which agreement was amended and superseded by other agreements,
including, without limitation, an Agreement for Legal, Financial, and Administrative Consulting
Services dated July 1,2000, which agreement was amended on March 1,2002, July 28,2002,
and March 1,2004 (collectively, the "Prior Agreements").
B. The City and Fresch desire to enter into this Amended and Restated Employment
Agreement (the "Agreement") to modify and clarify each of their obligations and to govern their
relationship. Effective as ofthe Effective Date, this Agreement shall supersede and replace all of
the Prior Agreements in their entirety, and all ofthe Prior Agreements shall be null and void and
of no further force and effect.
Now, therefore, the parties agree as follows:
1. Employment. Effective as ofthe Effective Date, and throughout the Term of
Fresch's employment, subject to the terms of Sections 8 and 9 below, Fresch shall be employed
by City to serve as the City's City Attorney. Fresch shall have those duties that are consistent
with the duties of a City Attorney of a municipal corporation in the State of California, and shall
perform such duties under the general direction and supervision of the City Council and the City
Administrator, or his authorized designee. Fresch represents that he remains an active member
in good standing with the State Bar of California, No. 095407.
2. EmploymentTerm. Subject to Section 8, Fresch's employment hereunder shall
be for a term of seven (7) years commencing on the Effective Date and expiring at the close of
business on the day prior to the seventh anniversary ofthe Effective Date (the "Term");
provided, however, that every seven years, on the anniversary ofthe Effective Date, this
Agreement shall automatically, and withoutthe need for any action or notice by either party,
renew for an additional term of seven (7) years, on the same terms and conditions as this
Agreement, unless either party to this Agreement notifies the other in writing to the contrary at
least thirty (30) days prior to the applicable anniversary date.
3. Place of Employment. Fresch may perform the services required hereunder from
any location that Fresch deems reasonable and appropriate; provided, however, that the City may
require that Fresch be physically present in Vernon on occasions that reasonably require his
presence, such as attendance at City Council meetings.
4. Scope of Work and Salary.
4.1 Hours and Base Salary. Fresch shall provide 100 hours of services a
month as City Attorney. Fresch's base salary shall be $27,500 per month.
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4.2 Additional Hours and Salary. Notwithstanding the above, Fresch agrees to
be reasonably available' for additional hours of service as reasonably required to perform his
duties as City Attorney, and shall be paid at the rate of $365 per hour for each hour (or portion
thereof) that he works in a month in excess of 100 hours.
4.3 Increases. Fresch's base salary and hourly rate for additional services
shall each be increased at the same time and in the same percentage increase as salary increases
are generally granted to other City employees.
4.4 Records and Pay Periods. Fresch shall submit records of his hours,
including a description ofthe amount oftime each project was worked on each day, which time
records are to be submitted monthly. Fresch shall be paid every two weeks in accordance with
the City's regular payroll practices, and his compensation shall be subject to all standard
withholding deductions.
5. Expenses. The City shall, on a monthly basis, payor reimburse Fresch for the
reasonable and necessary expenses incurred by Fresch in connection with the performance of his
duties hereunder if ( a) such expenses have been previously approved by the City or
reimbursement is othelWise appropriate in accordance with the City's established policies, and
(b) the City receives such verification thereof as the City may reasonably require. The following
expenses do not require pre-approval, unless the charges are anticipated to be substantially in
excess of previously approved similar charges: lengthy document typing, outside word
processing services, obtaining documents from research libraries or official agencies, and the
cost of travel and other expenses incurred on business trips to meetings or official appearances
on behalf of the City (including round trip air fare from San Francisco to Los Angeles as
reasonably required). Fresch shall be entitled to reimbursement for any other expenses that
Fresch incurs in the course of undertaking his services for and on behalf of the City that are
approved by the City Administrator or his authorized designee. Fresch may use the services of
City employees in connection with the performance of his duties hereunder, including, without
limitation, the performance of clerical or typing duties. Upon any termination of this Agreement,
Fresch shall be reimbursed for any unpaid expenses incurred through the date of termination that
are reimbursable in accordance with this Section 5.
6. Other Benefits. Fresch shall be entitled to all of the benefits available generally to
City employees, including, without limitation, participation in Cal PERS (with contributions by
the City in the same manner as made for other City employees), and group health and life
insurance provided to other City employees, and such additional benefit programs that may be
established by the City for its employees. The City shall have the right to amend, reduce or
completely terminate any or all such plans by duly authorized action respecting all employees
covered by such plans as a group. Upon any termination ofthis Agreement, Fresch shall be
entitled to all benefits through the date oftermination, and to rights under benefit plans beyond
the date oftermination in accordance with the provisions of the plans, including COBRA in
accordance with law.
7. Vacations and Holidays. Fresch may take off such holidays and vacation days as
are reasonable; provided, however, that he shall be obligated to provide 100 hours of services per
month notwithstanding any such vacations or holidays.
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8. Termination. This Agreement may be terminated as follows:
8.1 Death. Fresch's employment shall terminate immediately in the event of
his death.
8.2 Disability. The City may terminate Fresch's employment for Disability by
giving Fresch three (3) days' advance written notice. For all purposes under this Agreement,
"Disability" shall mean that Fresch, at the time such notice is given, has been unable to
substantially perform his duties under this Agreement for a period of not less than three (3)
consecutive months (or after four (4) months in the aggregate during a twelve-month period,
whether consecutive or not) as the result of his incapacity due to physical or mental illness. A
determination of Disability shall be made by the City Council in consultation with a physician
reasonably satisfactory to Presch (or his representative) and the City, and Fresch shall cooperate
with the efforts to make such determination. Any such determination shall be conclusive and
binding on the parties for the purposes of this Agreement.
8.3 Termination by City for "Cause". The City may terminate Fresch's
employment for "Cause". As used in this Agreement, the term "for Cause" shall be limited to a
termination for the following acts by Fresch: (i) Fresch's refusal or inability to perform any
material duties contemplated by this Agreement for a period ofthirty (30) consecutive business
days (except in the event that Fresch is determined to have a Disability (as defined in Section
8.2) or in the event of Fresch's death, in which case the date oftermination shall be as set forth in
Sections 8.2 and 8.1 respectively); (ii) grossly negligent, reckless or willful misconduct in
Fresch's performance of his duties and failure to cure such conduct within 30 calendar days
following written notice from the City Council describing the misconduct; (iii) Fresch's
conviction of any felony involving moral turpitude, which conviction through lapse oftime or
otheIWise is not subject to appeal; or (iv) Fresch's material violation of City policies, which
violation is not cured within 30 calendar days following written notice from the City Council
describing the violation; provided, however, that the City Council may terminate Fresch
immediately, and without notice and opportunity to cure, if the City Council determines that such
violation is so egregious that it is reasonably likely to subject the City to a risk of substantial
liability. The determination of Cause shall be made by the City Council in its reasonable
discretion.
8.4 Termination by Fresch for "Good Reason". Subject to the provisions set
forth below, at any time after the date Fresch commences employment under this Agreement,
upon thirty (30) days' advance written notice to the City of his intent to terminate the Agreement,
Fresch shall have the right to terminate his employment under this Agreement for "Good
Reason". For purposes ofthis Agreement, "Good Reason" is defined as anyone of the
following: (i) the City fails to comply with the provisions hereof governing compensation and
benefits to Fresch; (ii) the City requires Fresch to relocate to the City of Vernon or requires
Fresch to be available in the City of Vernon on a basis that is substantially in excess of past
pattern and practice or otherwise unreasonable; (iii) the City fails to maintain Fresch in the
position of City Attorney or Assistant City Attorney; (iv) the City materially breaches any other
provision of this Agreement with Fresch; or (v) conduct by the City occurs that would cause
Fresch to commit fraudulent acts or would expose Fresch to criminal liability; provided,
however, that it shall not constitute Good Reason unless Fresch shall have provided the City with
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written notice of its alleged actions constituting Good Reason (which notice shall specify in
reasonable detail the particulars of such Good Reason) and the City has not cured any such
alleged Good Reason within thirty (30) days ofthe City's receipt of such written notice.
9. Change in Position. Notwithstanding anything to the contrary set forth in this
Agreement, the City Council may, at any time, without the need for action or consent by Fresch,
elect to change Fresch's position from City Attorney to Assistant City Attorney, with such
change to be effective upon 30 days prior written notice, which notice shall be given following a
determination and vote by the City Council to make such change. Upon the effective date of
such change, Fresch's base salary shall be reduced to an amount equal to 50% of his then
existing base salary and his obligation to provide services to the City shall be decreased to 50
hours per month; provided, however, that Fresch shall remain obligated to perform additional
services as described in Section 4.2, and shall be paid at the rate of $275 per hour for the first
fifty hours (or portion thereof) that he works in a month above the base number of 50 hours, and
shall be paid $365 per hour for each hour (or portion thereof) that he works in a month in excess
of 100 hours. Effective upon such change, Fresch shall report directly to the City Attorney. All
other terms and provisions of this Agreement shall remain in full force and effect, including,
without limitation, the benefits and expense reimbursements, which shall not be decreased and
which will not require any additional contribution or payment by Fresch.
10. Notices. For purposes of this Agreement, notices and other communications
provided for in this Agreement shall be in writing and shall be delivered personally or sent by
United States certified mail, return receipt requested, postage prepaid, or by reputable overnight
courier, addressed as follows: -
If to Fresch:
Eric T. Fresch
4305 Santa Fe Avenue
Vernon, California 90058
If to the City:
City of Vernon
4305 Santa Fe Avenue
Vernon, California 90058
Attn: City Clerk
or to such other address or the attention of such other person as the recipient party has previously
furnished to the other party in writing in accordance with this Section 10. Such notices or other
communications shall be effective upon receipt or refusal to accept delivery.
11. Integration. This Agreement represents the entire agreement and understanding
between the parties as to the subject matter hereof and supersedes all prior or contemporaneous
agreements, whether written or oral. No waiver, alteration, or modification of any of the
provisions ofthis Agreement shall be binding unless in writing and signed by the parties hereto.
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12. Waiver. Failure or delay on the part of either party hereto to enforce any right,
power, or privilege hereunder shall not be deemed to constitute a waiver thereof. Additionally, a
waiver by either party of a breach of any promise hereof by the other party shall not operate as or
be construed to constitute a waiver of any subsequent breach by such other party.
13. Severability. Whenever possible, each provision ofthis Agreement will be
interpreted in such manner as to be effective and valid under applicable law, but if any provision
of this Agreement is held to be invalid, illegal or unenforceable in any respect under any
applicable law or rule, such invalidity, illegality or unenforceability will not affect any other
provision, but this Agreement will be reformed, construed and enforced to limit the non-
enforceable term to the extent required to make it enforceable and, if necessary, such term shall
be severed from the Agreement.
14. Headings. The headings ofthe Sections contained in this Agreement are for
reference purposes only and shall not in any way affect the meaning or interpretation of any
provision of this Agreement.
15. Applicable Law. This Agreement shall be governed by and construed in
accordance with the internal substantive laws, and not the choice of law rules, of the State of
California.
16. Counterparts; Facsimile. This Agreement may be executed in one or more
counterparts, each of which shall constitute an original and all of which, when taken together,
shall constitute but one and the same document. Facsimile signatures to this Agreement shall be
enforceable.
17. Attorneys' Fees. In the event of any conflict, dispute, claim, or other issue arising
out of or related to the terms ofthis Agreement or the relationship between the parties, or any
other matter related to a dispute between the parties in connection with the conduct of either of
them related to or arising out ofFresch's employment by the City, the prevailing party in such
matter shall be entitled to recover from the non-prevailing party all ofthe prevailing party's costs
(including, without limitation, costs of investigation and defense, court costs, and reasonable
attorneys' fees and costs), in addition to such other remedies as are ordered.
18. Dispute Resolution.
18.1 Use of JAMS. The City and Fresch agree that any dispute or controversy
arising out of or relating to any interpretation, construction, performance, termination or breach
of this Agreement or Fresch's employment with the City or termination of such employment, will
be settled by final and binding arbitration by a panel of arbitrators to be held in Los Angeles
County, California, in accordance with the rules ofthe Judicial Arbitration & Mediation
Services, Inc. ("JAMS"). Without limiting any other provision herein, this Section 18 shall
survive the termination ofFresch's employment with the City and will apply to any claim,
dispute, or controversy that arises during or after the termination ofFresch's employment with
the City.
18.2 Procedure. The arbitration shall take place before a panel of three retired
judges of the Superior Court of the State of California (the "Arbitrators") under the auspices of
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JAMS. Such arbitration shall be initiated by the parties, or either ofthem, within ten (10)
calendar days after either party sends notice of a demand to arbitrate (the "Arbitration Notice")
to the other party and to JAMS. The Arbitration Notice shall contain a description of the subject
matter of the arbitration, the dispute with respect thereto, the amount involved, if any, and the
remedy or determination sought.
18.3 Selection of Arbitrators. Each party shall select a retired judge from the
JAMS panel, and the two selected judges shall mutually agree on the third retired judge from the
JAMS panel. If one of the parties does not select a retired judge from the JAMS panel within 14
calendar days after receipt of the Arbitration Notice, JAMS will select the second judge, and the
judge selected by JAMS and the judge selected by the other party will select the third judge for
the panel. The third judge is to be selected within 10 calendar days following the selection of the
first two judges. The three judges will together serve as the Arbitrators. fu the event of any
subsequent vacancies or inabilities to perform among the Arbitrators appointed, the Arbitrators
involved shall be replaced in accordance with the provisions of this Section 18.3 as if such
replacement was an initial appointment to be made under this Section 18.3 within the time
constraints set forth in this Section 18.3, measured from the date of notice of such vacancy or
inability to the person or persons required to make such appointment.
18.4 The Decision. Any party may be represented by counselor other
authorized representative. fu rendering a decision(s), the Arbitrators shall determine the rights
and obligations ofthe parties according to the substantive and procedural laws ofthe State of
California and the terms of this Agreement. The decision of the Arbitrators shall be based on the
evidence introduced at the hearing, and shall be based on, and accompanied by, a written
statement of decision explaining the factual and legal basis for the decision as to each of the
principal controverted issues. The agreement of two ofthe three Arbitrators as to the resolution
of the dispute shall be a conclusive resolution. The Arbitrators shall deliver the written decision
to the parties within 30 calendar days following the date of the selection of the last ofthe
Arbitrators. The decision shall be conclusive and binding, and it may thereafter be confirmed as
a judgment by the Superior Court of the State of California, subject only to challenge on the
grounds set forth in the California Code of Civil Procedure Section 1286.2. The validity and
enforceability of the decision of the Arbitrators is to be determined exclusively by the California
courts. The Arbitrators shall have the authority to grant Fresch or the City or both all remedies
otherwise available by law, including injunctions.
18.5 Payment of Arbitrators. The City shall pay the costs of all Arbitrators and
the arbitration process.
18.6 Waiver. The parties hereby acknowledge that they have voluntarily
waived their right to a trial by the court or by a jurY, have negotiated the terms of this
Agreement, including, without limitation, this Section 18, have consulted with counsel
concerning such terms, and V~luntarilY ~gree to them. C L
C~itials Fresch's fuitials
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Each of the parties has executed this Employment Agreement, in the case of the City by
its duly authorized representative, as ofthe day and year first above written.
ATTEST:
By. 6~
- City-eierk-
Acting City Clerk
Approved as to Form:
Ba4P~
.JOhn Karns
General Counsel to the City ofVemon
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CITY OF VERNON
a Municipal Corporation
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By:" . -j.
-- eonis C. Malburg _ - _ ~
Mayor
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Eric T. Fresch
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