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Resolution No. 09945 1 RESOLUTION NO. 9945 2 3 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF VERNON APPROVING AND AUTHORIZING THE EXECUTION OF 4 AN AMENDED AND RESTATED LEGAL SERVICES AGREEMENT BY 5 AND BETWEEN THE CITY OF VERNON AND THE LAW OFFICES OF ERIC T. FRESCH 6 7 WHEREAS, Eric T. French has represented the City of Vernon 8 for many years since the early 1980's, as an attorney practicing with 9 various law firms; and 10 WHEREAS, commencing in July, 2005, the City Council adopted 11 Resolution No. 8789, as amended by Resolution Nos. 9177, 9313, and 12 9887,. respectively, approving an Amended and Restated Employment 13 A"greement .(the "Prior Agreements") with Eric T. French, through his 14 law firm ("FreschLaw"); "and 15 WHEREAS, the City Council of the City of Vernon desires to 16 adopt an amended and restated legal services agreement in order to 17 modify and clarify the parties' relationship and obligations; and 18 WHEREAS, the- Amended and Restated-Legal Services Agreement is 19 intended to supersede the Prior Agreements. 20 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE 21 CITY OF VERNON AS FOLLOWS: 22 SECTION 1: The City Council of the City of Vernon .hereby 23 finds and determines that the recitals contained hereinabove are true 24 'and correct.. 25 SECTION 2: The City Council of the City of Vernon hereby 26 approves the Amended and Restated Legal Services Agreement (the 27 "Agreement") with FreschLaw,. in substantially the same form as the copy 2.8 -which is attached hereto as Exhibit A and incorporated by reference. 1 The City hereby, pursuant to the Agreement, as amended, retains Eric 2 T. Fresch as .the Assistant City Attorney I and additionally the 3 Special Counsel on the terms and .conditions contained in the 4 Agreement,. as amended, and compensation for said services shall be 5 paid pursuant to the Agreement, as amended. 6 SECTION 3: The City Council of the City of Vernon hereby 7 authorizes the Mayor or Mayor Pro-Tem to execute the Agreement with 8 .FreschLaw -for, and on behalf of, the City of .Vernon and the City Clerk 9 or Deputy City Clerk is hereby authorized to attest thereto. 10 SECTION 4: The City Council of the City of Vernon hereby 11 authorizes the City Administrator, or-his designee, to make whatever 12 nonsubstantive, administrative and/or text changes, upon. advice of 13, counsel, to the Agreement as amended. 14 SECTION 5: The City Council of the City of Vernon hereby 15 directs the City Clerk, or her designee, to .give .one fully executed- 16 .Agreement to FreschLaw. 17 SECTION 6: The City Clerk of the City of Vernon shall. 18 certify to the passage of this resolution,. and thereupon and 19 thereafter the same shall be in full .force and effect. 20- APPROVED AND ADOPTED this 11th .day of May, 2009. 21 N~ 22 Name: Hilario Gonzales 23 24 Title: Mayor. /fir Dr^-'T'Pm ATTEST: 25 ~ 26 ANUELA GIRO ity Clerk 27 28 - 2 - 1 STATE OF CALIFORNIA ) 2 ) ss COUNTY OF LOS ANGELES ) 3 4 I, MANUELA GIRON, City Clerk of the City of Vernon, do hereby 5 certify that the foregoing Resolution, being Resolution No. 9945, was 6 duly adopted by the City Council of the City of Vernon at a regular ~ meeting of the City Council duly .held on Monday., May 11, 2009, and 8 thereafter was duly signed by the Mayor or Mayor Pro-Tem of .the. City of 9 Vernon. 10 11 ANUELA GIRO City Clerk 12 13 (SEAL) 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 3 - EXHIBIT A AMENDED AND RESTATED LEGAL SERVICES AGREEMENT This Amended and Restated Legal Services Agreement is entered into as of May 15, 2009 (the "Effective Date"), by and between THE CITY OF VERNON, a municipal corporation, ("City") and the LAW OFFICES OF ERIC T. FRESCH, a corporation in formation ("FreschLaw"), based on the following facts and circumstances: A. The City and Eric T. Fresch and/or FreschLaw entered into an agreement for legal and financial consulting services in June, 1.986, 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 approximately March 1, 2002, July 28, 2002, April 3, 2003, and March 1, 2004; and amended and restated on about July 1, 2005; December 13, 2006, May 7, 2007, and March 16, 2009 (collectively, the "Prior Agreements"). B. The City and FreschLaw desire to enter into this Amended and Restated Legal Services Agreement (the "Agreement") to modify and clarify each of their obligations and to govern their relationship. Effective as of the Effective Date, this Agreement shall supersede and replace all of the Prior Agreements in their entirety, and all of the Prior Agreements shall be null and void and of no further force and effect. Now, therefore, the parties agree as follows: ARTICLE L• Amount and Scope of Services L FreschLaw agrees to provide the City with the services of Eric T. Fresch each year as an employee performing duties for the City under the Common Law definition of a Master-Servant relationship, under the scope and control of the City. Eric T. Fresch shall be employed in the capacity of Assistant City Attorney I for all purposes of all sections of the Agreement pursuant to the terms and provisions set forth below in Article II. 2. FreschLaw agrees to provide the City with the services of Eric T. Fresch to represent the City as Special Counsel. 3. FreschLaw agrees to provide the services of its attorneys, at the request of and upon the prior approval of the City Council or the City Administrator, to represent the City on any legal matters requested by the City. The hours billed by FreschLaw for these services shall be at the rate of $365 per hour. FreschLaw shall submit monthly invoices for such services, describing the amount of time each project was worked on each day. 4. FreschLaw is authorized to employ consultants at City expense in the areas of electric generation projects, renewable energy projects, electric system finance, natural gas systems, and other energy related fields that would support the objectives of the City, its Light & Power Department and its Gas Department. FreschLaw's authorization herein to employ such consultants is conditional upon the prior approval of the City Council or the City Administrator. Before said approval is granted, FreschLaw shall submit a budget for said consultant detailing the scope of services, billings rates and the particular energy projects to be undertaken. ARTICLE II: Employment of Eric T. Fresch 1. Employ Effective as of the Effective Date, and throughout the term of Eric T. Fresch's employment, subject to the terms of Sections 8 and 9 below, Eric T. Fresch shall be employed by City to serve as the City's Assistant City Attorney L Eric T. Fresch shall have-those -1- duties that are consistent with the duties of an Assistant City Attorney I 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, N.o. 095407. 2. Employment Term. Subject to Section 8, Eric T. Fresch's employment hereunder shall be'for a term of three (3) years .commencing on the Effective Date and expiring at the close of business on the day prior to the third anniversary of the Effective Date (the "Term"); provided, however, that every three years, on the anniversary of the Effective Date, this Agreement shall automatically, and without the need for any action or notice by either party, renew for: an additional term of three'(3) 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 Emplo~ent. Eric T. Fresch may perform the services required. . hereunder from any location that Eric T. Fresch deems .reasonable and appropriate; provided, however, that'the City may require that Eric T. Fresch be physically present in Vernon on occasions that reasonably require his presence, such as attendance at City Council meetings.. 3.1 City Reserved Rights in this Section 3. Notwithstanding the above language, the City may at any time specify where and when Eric T. Fresch will perform the services required hereunder. 4. Scope of Work and Salary . 4.1 Hours and Base Salary. Eric T. Fresch shall provide 1200 hours of services a year as an Assistant City Attorney I at the billing rate of $275 per hour. Eric T. Fresch shall be limited to these~hours at this rate for his compensation as an employee. -The City reserves the right to adjust the salary compensation of Eric T. Fresck should he fail to perform the required 1200 hours of compensation in any one calendar year. 4.2 Records and Pay Periods. In his capacity hereunder as an employee, Eric T. Fresch shall submit records of his hours, including a description of the amount of time each project was worked on each day, which time records are to be submitted monthly. Eric T. 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, pay or reimburse Eric T. Fresch for -the reasonable and necessary expenses incurred by Eric T. Fresch in connection with the performance of his duties hereunder if (a) such expenses have been previously approved by the City or reimbursement. is otherwise 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). Eric T. Fresch shall be entitled to reimbursement for. any other ..expenses that .Eric T. 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. Eric T. Fresch -2- 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, Eric T. 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. Eric T. 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 maybe 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 of this Agreement, Eric T. Fresch shall be entitled to all benefits through the date of termination, and to rights under benefit plans beyond the date of termination in accordance with the provisions of the plans, including COBRA in accordance with law. ' 7. Vacations and Holidays. Eric T. Fresch may take off such holidays and vacation days as are reasonable; provided, however, that he shall be obligated to provide 1200 hours of services per year notwithstanding any such vacations or holidays. 8. Termination. This Agreement maybe terminated as follows: 8.1 Death. Eric T. French's employment shall terminate immediately in the event of his death. 8.2 Disability. The City may terminate Eric T. French's employment for Disability by giving Eric T. Fresch three (3) days' advance written notice. For all purposes under ..this Agreement, "Disability" shall mean that Eric T. 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 atwelve-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 Eric T. Fresch (or his representative) and the City, and Eric T. 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 bv. City for. "Cause". The City may terminate Eric T. French's employment for "Cause". As used in this Agreement, the term "for Cause" shall be limited to a termination for the following acts by Eric T. Fresch: (i) Eric T. French's refusal or inability to .perform any material duties contemplated by this Agreement for a period of thirty (30) consecutive business days (except in the event that Eric T. Fresch is determined to have a Disability (as defined in Section 8.2) or in the event of Eric T. Fresch's death, in which. case the date of termination shall be as set forth in Sections 8.2 and 8.1 respectively); (ii) grossly negligent, reckless or willful misconduct in Eric T. 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) Eric T. Fresch's conviction of any felony involving moral turpitude, which conviction through lapse of time or otherwise is not subject to appeal; or (iv) Eric T. French'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 Eric T. 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 -3- Cause shall be made by the City Council in its'reasonable discretion. 8.4 Termination by Eric T. Fresch for "Good Reason". Subject to the provisions set forth below, at any time after the date Eric T. Fresch commences employment under this Agreement, upon thirty (30) days' advance written notice to the City of his intent to terminate the Agreement, Eric T. Fresch shall have the right to terminate his employment under this Agreement for "Good Reason". For purposes of this 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 Eric T. Fresch; (ii) the City requires Eric T. Fresch to relocate to the City of Vernon or requires Eric T. 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 Eric T. Fresch in the position of Assistant City Attorney I; (iv) the City materially breaches any other provision of this Agreement with Eric T: Fresch; or (v) conduct by the City occurs that would cause Eric T. Fresch to commit fraudulent acts or would expose Eric T. Fresch to criminal liability; provided ,however,. that it shall not constitute Good Reason unless Eric T. Fresch shall have provided the City with 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 of the City's receipt of such written notice. 9. 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 Law Offices of Eric T. Fresch: .Law Offices of Eric T. Fresch 33 New Montgomery, Sixth Floor San Francisco, CA 94105-4537 If to the City: City of Vernon 4305 Santa Fe Avenue Vernon, California 90058 Attn: City Administrator 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. 10. 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 of this Agreement shall be binding unless in writing and signed by the parties hereto. 1 L 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. -4- 12. Severability. Whenever possible, each provision of this 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.- 13. Headings. The headings of the 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. 14. 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. 15. 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. 16. Attorneys' Fees. In the event of any conflict, dispute, claim, or other issue arising out of or related to the terms of this 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 of Eric T. Fresch's employment by the City, the prevailing party in such matter shall be entitled to recover from the non-prevailing party all of the 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. 17. Dispute Resolution. 17.1 Use of JAMS. The City and Eric T. Fresch agree that any dispute or controversy arising out of or relating to any interpretation, construction, performance, termination or breach of this Agreement or Eric T. 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 of the' Judicial Arbitration Mediation Services; Inc. ("JAMS"). Without limiting any other provision herein, this Section 18 shall survive the termination of Eric T. Fresch's employment with the City and will apply to any claim, dispute, or controversy that arises during or after the termination of Eric T. Fresch's employment with the City. 17.2 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 JAMS. Such arbitration shall be initiated by the parties, or either of them, 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. -5-• 17.3 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 pariel. 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. In 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. 17.4 The Decision. Any party may be represented by counselor other authorized representative. In rendering a decision(s), the Arbitrators shall determine the rights and obligations of the parties according to the substantive and procedural laws of the State of California and'theterms 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 of the 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 of the 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 into be determined exclusively by the California courts. The Arbitrators shall have the authority to grant Eric T. Fresch or the City or both all remedies otherwise available by law, including injunctions. 17.5 Payment of Arbitrators. The City shall pay the costs of all Arbitrators and the arbitration process. 17.6 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 voluntarily agree to them. City's Initials FreschLaw's Initials -6- Each of the parties has executed this Employment Agreement, in the case of the City by its duly authorized representative, as of the day and year first above written. CITY OF VERNON a Municipal Corporation By. Hilario Gonzales Mayor ATTEST: By: Manuela Giron City, Clerk APPROVED AS TO FORM: By: Jeff A. Harrison City Attorney LAW OFFICES of ERIC T. FRESCH (a corporation in formation) By: Eric T. Fresch -7- m ~ ~ t~F ~ n . ~txi~F'i_Y:~tNP.~ 4305 Santa Fe Avenue, Vernon, California 90058 Telephone (323) 583-8811 May 12, 2009 Eric T. French, Esq. 33 New Montgomery, Sixth Floor San Francisco, CA 94105-4537 Re: Amended and Restated Legal Services Agreement Dear Mr. French: Transmitted herewith is a fully executed amended and restated legal services agreement approved through Resolution No. 9945, approved by City Council on May 11, 2009. If you have any questions regarding this matter, please call Mr. Donal O'Callaghan at (323) 583- 8811 ext. 834. Very truly yours, Nelly Giron City Clerk NG:dj c: Donal O'Callaghan Sharon Duckworth Resolution No. 9945 Agreement File No. 09-073 E.xcCusiveCy IndustriaC AMENDED AND RESTATED LEGAL SERVICES AGREEMENT This Amended. and Restated Legal Services Agreement is entered into as of May 15, 2009 (the "Effective Date"), by and between THE CITY OF VERNON, a municipal corporation, ("City") and the LAW OFFICES OF ERIC T. FRESCH, a corporation in formation ("FreschLaw"), based on the following facts and circumstances: . A. The City and Eric T. Fresch and/or FreschLaw 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 approximately March 1, 2002, July 28, 2002, April 3, 2003, and March 1; 2004; and amended and restated on about July 1, 2005; December 13; 2006, May 7, 2007, and Marchl6, 2009 (collectively, the "Prior Agreements"). B. The City and FreschLaw desire to enter into this Amended and Restated Legal Services Agreement (the "Agreement") to modify and clarify each of their obligations and to govern their relationship. Effective as of the Effective Date, this Agreement shall supersede and replace all of the Prior Agreements in their entirety, and all of the Prior Agreements shall be null and void and of no further force and effect. Now, therefore, the parties agree as follows: ARTICLE I: Amount and Scope of Services 1. FreschLaw agrees to provide the City with the services of Eric T: Fresch each year as an employee performing duties for the City under the Common Law definition of a Master-Servant relationship, under the scope and control of the City. Eric T. Fresch shall be employed in the capacity of Assistant City Attorney I for all purposes of all sections of the Agreement pursuant to the terms and provisions set forth below in Article II. 2. FreschLaw agrees to provide the City with the services of Eric T. Fresch to represent the City as Special Counsel. 3. FreschLaw agrees to provide the services of its attorneys, at the request of and upon the prior approval of the City Council or the City Administrator, to represent the City on any legal matters requested by the City. The hours billed by FreschLaw for these services shall be at the rate of $365 per hour.. FreschLaw shall submit monthly invoices for such services, describing the amount of time each project was worked on each day. 4. FreschLaw is authorized to employ consultants at City expense in the areas of electric generation projects, renewable energy projects, electric system finance, natural gas systems, and other energy related fields that. would support the objectives of the-City, its Light & Power Department and its Gas Department. FreschLaw's authorization herein to employ such consultants is conditional upon the prior approval of the City Council or the City Administrator. Before said approval is granted, FreschLaw shall submit a budget for said consultant detailing the scope of services, billings rates and the particular energy projects to be undertaken. ARTICLE II: Employment of Eric T. Fresch 1. Employ Effective as of the Effective Date, and throughout the term of Eric T. Fresch's employment, subject to the terms of Sections 8 -and 9 below, Eric T. Fresch shall be employed by City to serve as the City's Assistant City Attorney I. Eric T. Fresch shall have-those -1- duties -that are consistent. with the duties of an Assistant City Attorney I 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, Employment Term. Subject to Section 8, Eric T. Fresch's employment hereunder shall be for a term of three (3) years commencing on the Effective Date and expiring at the close of business on the day prior to the third anniversary of the Effective Date (the "Term"); provided, however, that every three years, on the anniversaryof the Effective Date, this Agreement shall automatically; and without the need for any action or notice by either party, renew for an additional term of three (3) .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 Employ Eric T. Fresch may perform the services required hereunder from any location that Eric T. Fresch deems reasonable and appropriate; provided, however, that the City may require that Eric.T. Fresch be physically present in Vernon on occasions that reasonably require his .presence, such as attendance at City Council meetings. 3.1 City Reserved Rights in this Section 3, Notwithstanding the above language, the City may at any time specify where and when Eric T. Fresch will perform the services required hereunder. 4. Scope of Work and Salary. 4.1 Hours and Base Salary. Eric T. Fresch shall provide 1200 hours of services: a year as an. Assistant City Attorney I at the billing rate of $275 per hour. Eric T. Fresch shall belimited to these hours at this rate'for his compensation as an employee. The City reserves the right to adjust the salary compensation of Eric T. Fresch should he fail to perform the required 1200 hours of compensation in any one calendar year. 4.2 Records and Pay Periods. In his capacity hereunder as an employee, Eric T. Fresch shall submit records of his hours,.. including a description of the amount of time each project was worked on each day, which time records are to be submitted monthly. Eric T. Fresch shall bepaid every two weeks in accordance with the City's regular payroll practices, and his compensation shall be subject to all standard withholding deductions. - 5. Ex ep rases. The City shall, on a monthly basis, pay or reimburse Eric T. Fresch for the reasonable and necessary expenses incurred by Eric T. Fresch in connection with the performance of his duties hereunder if (a) such expenses have been previously approved by the City or reimbursement is otherwise 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 he charges are anticipated to be substantially izi 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). Eric T. Fresch shall be entitled to reimbursement for any other expenses that Eric T. 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. Eric T. Fresch -2- 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, Eric T. 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. Eric T. 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 of this Agreement, Eric T. Fresch shall be entitled to all benefits through the date of termination, and to rights under benefit plans beyond the date of termination in accordance with the provisions of the plans, including COBRA in accordance with law. 7. Vacations and Holidays. Erie T. Fresch may take off such holidays and vacation days as are reasonable; provided, however; that he shall be obligated to provide 1200 hours of services per year notwithstanding any such vacations or holidays. 8: Termination. This Agreement maybe terminated as follows: 8.1 Death: Eric T: Fresch's employment shall terminate immediately in the event of his death. 8.2 .Disability. The City may terminate Eric T. Fresch's employment for Disability by giving Eric T. Fresch three (3) days' advance written notice. For all purposes under this Agreement, "Disability" shall mean that Eric T. 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 atwelve-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 Eric T. Fresch (or his representative) and the City, and Eric T. 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 Eric T. 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 Eric T. Fresch: (i) Eric T. Fresch's refusal or inability to perform any material duties contemplated by this Agreement for a,period of thirty. (30) consecutive business days (except in the event that Eric T. Fresch is determined to have a Disability (as defined in Section 8.2) or in the event of Eric T. Fresch's death, in which case the date of termination shall be as set forth in Sections 8.2 and 8.1 respectively); (ii) grossly negligent, reckless or willful misconduct in Eric T. 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) Eric T. Fresch's conviction of any felony involving moral turpitude, which conviction through lapse of time or otherwise is not subject to appeal; or (iv) Eric T. 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 Eric T. 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 -3- Cause shall be made by the City Council in its reasonable discretion. 8.4 Termination by Eric T. Fresch for "Good Reason". Subject to the provisions set forth below, at any time after the date Eric T. Fresch commences employment under this Agreement, upon thirty (30) days' advance written notice to the City of his intent to terminate the Agreement, Eric T. Fresch shall have the right to terminate his .employment under this Agreement for "Good Reason". For purposes of this 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 Eric T. Fresch; (ii) the .City requires Eric T. Fresch to relocate to the City of Vernon or requires Eric T: 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 Eric T. Fresch in the position of Assistant City Attorney I; (iv) the City materially breaches any other provision of this Agreement with Eric T. Fresch; or (v) conduct by the City occurs that would cause Eric T. Fresch to commit fraudulent acts or would expose Eric T. Fresch to criminal liability; provided ,however, that it shall not constitute Good Reason unless Eric T. Fresch shall have provided the City with written notice of its alleged actions constituting Good Reason (which notice shall specify m reasonable detail the particulars of such Good Reason) and the City has not cured any such alleged Good Reason within thirty (30) days of the City's receipt of such written notice. 9. 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 Law Offices of Eric T. Fresch: Law Offices of Eric T. Fresch 33 New Montgomery, Sixth Floor San Francisco, CA 94105-4537 If to the City: City of Vernon 4305 .Santa Fe Avenue Vernon, California 90058 Attn: City Administrator or to such other address or the attention of such other person as the recipient party has previously funiished 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. 10. 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 of this Agreement shall be binding unless iri writing and signed by the parties hereto. 11. 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. -4- 12. Severability. Whenever possible, each provision of this 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. 13. Headings. The headings of the 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. 14. 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. 15. Counterparts; Facsimile. This Agreement maybe 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. 16. Attorneys' Fees. In the event of any conflict, dispute, claim, or other issue arising out of or related to the terms of this 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 of Eric T. Fresch's employment by the City, the prevailing party in such matter shall be entitled to recover from the non-prevailing party all of the 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. 17: Dispute Resolution. 17.1 Use of JAMS.. The City and Eric T. Fresch agree that any dispute or .controversy. arising out of or relating to any interpretation, construction, performance, termination or breach of this Agreement or Eric T. 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 of the Judicial Arbitration 8r, Mediation Services, Inc. (".JAMS"). Without limiting any other provision herein; this Section 18 shall survive the termination of Eric T. Fresch's employment with the City and will apply to any claim, dispute, or controversy that arises during or after the termination of Eric T. Fresch's employment with the City. 17.2 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 JAMS. Such arbitration shall be initiated by the parties, or either of them, 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. -5- 17.3. 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. In 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. 17.4 The Decision. Any party maybe represented by counselor other authorized representative. In rendering a decision(s), the Arbitrators shall determine the rights and obligations of the parties according to the substantive-and procedural laws of the 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 of the 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 of the 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 Eric T. Fresch or-the City or both all remedies otherwise available by law, including injunctions. 17.5 Payment of Arbitrators. The City shall pay the costs of all Arbitrators and the arbitration process. 17.6 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 voluntarily agree to them. City's Initials FreschLaw's Initials -6- Each. of the. parties has executed this Employment Agreement,. in the case of the City by its duly authorized representative, as of the day and year first above written. CITY OF VERNON a Municipal Corporation Hilario Gonzales Mayor ATTEST: By: nth, Manuela it City Clerk APPROVED AS TO FORM: By: f .Harrison it ttorney LAW OFFICES of ERIC T. FRESCH (a corporation in formation) By: Eric T. Fresch -7- pF VET V ~ ~ aPPROVEO ~raY ~ ~ 'o~ ~I'I~Cact,a6;,~ C!'Cy C ERK DISTRIBUTI~ 1 L ~1`n eg~~~,,~ae~r~ STAFF REPORT CITY ADMINISTRATION DATE: May 7, 2009 TO: Mayor and City Council FROM: Eric Fresch; City Administrator RE: Appointment of New City Administrator have been your.City Administrator far a little over two years. In that time we have proposed to you and. you have adopted various ordinances that reorganized. the City's administrative structure. Your Department Heads now have the authority and responsibility to manage their respective departments: Various positions have been created to better manage the City's needs and facilitate efficient communications with other governmental agencies, capital markets, the City's lenders, and Wall Street. The City's credit rating has been increased two levels to the "A-3:' category. We have structured the optimal use of our Light & Power resources, culminafing in the City receiving nearly $400 million in proceeds from that asset restructuring. The City has paid off all of its nearly $300 million in project. debt. And finally, the City has successfully restructured its natural gas supply to low interest long term debt. Ironically, l worked with the team representing the City accomplishing these objectives as an: attorney. Today, I am recommending to you to appoint Donal O' .Callaghan, effective May 15th, 2009, as the administrative head of the City's,government in the role of City Administrator.. He can. devote his entire time to the duties and interests of the City in this new role, as well as serving as the City's Director of Light & Power. I make these recommendations to the City at no additional economic cost for Donal's services. My own contract hourly rates for legal services also remain the same and as always the amourit of hours I work are subject to-the City's request and approval. Thank you for the privilege of serving this City.