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Resolution No. 09969 1 RESOLUTION NO: 9969 2 3 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF VERNON APPROVING AND AUTHORIZING THE EXECUTION OF A 4~ SECOND AMENDED AND RESTATED LEGAL SERVICES 5 AGREEMENT BY AND BETWEEN THE CITY OF VERNON AND THE LAW OFFICES OF ERIC T. FRESCH 6 7 WHEREAS, Eric T. Fresch has represented the City of Vernon 8 for many years since the early 1980's, as an .attorney practicing. with g various law firms;. and 10 WHEREAS, on May 11, 2009, the City Council of the City of 11 Vernon adopted Resolution No. 9945 approving an Amended and Restated 12 Legal Services Agreement effective May 15, 2009 with Eric T. Fresch, 13 through his law .firm ("FreschLaw."); and 14 WHEREAS, the City Council of the City of Vernon desires to 15 adopt a second amended and restated legal services agreement in order 16 to modify and clarify the. parties' relationship and obligations; and 17 WHEREAS, the Second Amended and Restated Legal Services 1g Agreement ("Second Amended Agreement") is intended to supersede any 19 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 Second Amended and Restated-Legal Services Agreement with 27 FreschLaw, in substantially the same form as the copy 'which is attached 28 hereto as Exhibit A and incorporated by reference. 1 The City hereby, pursuant to the Second Amended Agreement 2 retains Eric T. Fresch as the Assistant City Attorney I and 3 additionally the Special Counsel on the terms and conditions contained 4 in the Second Amended Agreement and compensation for said services 5 shall be paid pursuant to the Second Amended Agreement. 6 SECTION 3: The City Council of the City of Vernon hereby 7 authorizes the Mayor or Mayor Pro-Tem to execute the Second Amended. 8 Agreement. with FreschLaw for, and on behalf of, the City of Vernon and 9 the City Clerk or Deputy City Clerk. is hereby authorized to attest 10 thereto. 11 SECTION 4: The City Council of the City of Vernon hereby 12 authorizes the City Administrator, or his designee, to make whatever 13 nonsubstantive, administrative and/or-text changes, upon advice of 14 counsel, to the Second Amended Agreement. 15 SECTION 5: The City Council of the City of Vernon hereby 16 directs the City Clerk, or her designee, to-give one fully executed 17 Second Amended Agreement to FreschLaw. 18 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 1St day of June, 2009. 22 a 23 24 Name: Hilario Gonzales 25 Title.: Mayor ~ M°~,^r Dr _m°,~ l ATTEST: 26 C ty Clerk 27 M NUELA GIRON, 28 - 2 - 1 STATE OF CALIFORNIA ) ss 2 COUNTY OF LOS ANGELES ) 3 4 I, MANDELA GIRON, City Clerk of the City of Vernon, do hereby 5 certify that the foregoing Resolution,. being Resolution No. 9969, was- 6 duly adopted by the City Council of the City of Vernon at a regular 7 meeting of the City Council duly held on Monday,-June 1, 2009, and 8 thereafter was duly .signed by the Mayor or Mayor .Pro-Tem of the City of 9 Vernon. 10 11 MANUELA GIRON, City-Clerk 12 13 (SEAL) ' 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 _ 3 _ ~I~I~IT A. SECOND AMENDED AND RESTATED LEGAL SERVICES AGREEMENT This. Second Amended and Restated Legal Services Agreement is entered into as of June 1, 2009 (the "Effective Date"), by and between THE CITY OF VERNON, a municipal corporation, ("City") and the LAW OFFICES OF ERIC T. FRESCH, LTD., a professional corporation information ("FreschLaw"), based on the following facts and circumstances: A. The City and FreschLaw entered into an Amended and Restated Legal Services Agreement on May 15, 2009 (the "First Amended Agreement"). B. The. City and FreschLaw desire to enter into this Second Amended and Restated Legal Services Agreement (the "Second Amended Agreement") to modify and clarify each of their obligations and to govern their relationship. Effective as of the Effective Date, this Second Amended Agreement shall supersede and replace the First Amended Agreement in its entirety, and the First Amended Agreement 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 under the employment term of this Second Amended Agreement, set forth in Article II, Section,2, below, 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 this Second Amended Agreement pursuant to the terms and provisions set forth below in Article IL 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, and on each January 1; that this .Second Amended Agreement is still in force and effect, said rate shall be adjusted by an amount of up to five percent (5%), upon the prior approval of the City or the City. Administrator. 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. Employment. Effective as of the Effective Date, and throughout the term of Eric T. Fresch's .employment, subject to-the terms of Sections 2 and 8 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 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 -1- 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. Frescha employment hereunder shall be for a term of ninety (90) days commencing on the Effective Date and expiring at the close of business on the ninetieth (90t") day from-the Effective Date (the "Term"); provided, however, that-every ninety (90) days from the Effective Date, this Second Amended Agreement shall automatically, and without the need for any action or notice by either party, renew for an additional term of ninety (90) days, on the same terms .and conditions as this Second Amended Agreement, unless either party to this Second Amended Agreement notifies the other in writing- to the contrary at least thirty- (30}.days .prior to the applicable ninetieth (90th) day. 3. Place of Employment. 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 a minimum of 75-1/3 hours per month for services. as an Assistant City Attorney I at the. FreschLaw base billing rate of $365 per hour. If FreschLaw fails to provide the services of Eric. T: Fresch for the required number of 75-1/3 monthly hours, the City reserves the-right to adjust the salary compensation of Eric T. Fresch accordingly. FreschLaw shall deduct the monthly salary compensation of Eric T. Fresch from its monthly invoices for .legal services. as a first charge against additional legal fees owed,. if any, for that month. 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 not pay or reimburse FreschLaw or Eric T. Fresch for any expenses incurred by FreschLaw or Eric T. Fresch in connection with the performance of services or duties under this Second Amended Agreement. Notwithstanding the above, if the City causes FreschLaw to employ consultants as referenced in Article I, Section 4, the City shall pay FreschLaw for all costs and expenses incurred in connection with such undertaking 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 m 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 -2- employees covered by such plans as a group. Upon any termination ofthis 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 75-1/3 hours of services per month notwithstanding-any such vacations or holidays. 8. Termination. This Agreement may be 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 ofthis. 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 thirty (30) calendar days following written notice from the City Council describing the misconduct; (iii) Eric T. French'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 thirty (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 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 righf 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 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 -3- 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, Ltd.: Law Offices of Eric T. Fresch, Ltd, 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 9. Such notices or other communications shall be effective upon receipt or refusal to accept delivery. 10. Inte rag tion. 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. 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. 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 -4- 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. Attorne sees. 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 Second Amended 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 iri Los Angeles County; California, in accordance with the rules of the Judicial Arbitration 8L Mediation Services, Inc..("JAMS"). Without limiting any other provision herein, this Section 17 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 ofthe 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. 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 into be selected within ten (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 17.3 as if -5- such replacement was an initial appointment to be made under this Section 17.3 within the time constraints set forth in this Section 17.3, 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 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 thirty (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 17~ave consulted w ith counsel concerning such terms, and voluntarily agree to them. City's Initials FreschLaw's Initials -6- t 1 ~ i ~ ~ Each of the parties has. executed this Second Amended 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, LTD. (a professional corporation in formation) - By: Eric T. Fresch -7- C 11 ~ v ' n~ ~ t ~Il,e,o~o,so e.° ~Q1~D ~lUN 01 'Q9 CITY COUNCIL, Gs~~'ELY iN~V STAFF REPORT OFFICE OF THE SPECIAL COUNSEL DATE:. May 26, 2009 TO: Honorable Mayor and City Council FROM: Eric French, Special Counsel RE: Second Amended and Restated Legal Services Agreement. The Second Amended and Restated Legal Services. Agreement ("Second Amended Agreement")' being offered for your consideration today is an agreement for legal services between-the City and my law firm. ~ . The changes and revisions in this Second Amended Agreement clarify inconsistencies and confusing provisions. The principal changes to this agreement over the prior one includes: (1) the standardizing of my law firm rate at $365 per hour for all legal services rendered (this rate has been my firm's rate since July, 2005); (2) the elimination of the reimbursement of all expenses incurred by either my -law firm or me on behalf of the City, including travel, accommodations and other costs incurred. in connection with New York finance and. capital projects; and (3) the- reduction of the term of my agreement. from three (3) years to 90 days. The City has the .option to renew my law firm's agreement for another 90 days and. so on at the City's pleasure. ~ i .t ~ ~ ~ Y. ~t° f P _ i 4305 Santa Fe Avenue, Vernon, California 90058 Telephone (323) 583-8811 June 17, 2009 Eric T. Fresch, Esq. Law Offices of Eric T. Fresch, Ltd. 33 New Montgomery, Sixth Floor San Francisco, CA 94.105-4537 Re: Second Amended and Restated Legal Services Agreement Dear Mr. Fresch: Transmitted herewith is a fully executed second amended and restated legal services agreement approved through Resolution No. 9969, approved by City Council on Tune 1, 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. 9969 Agreement File No. 09-082 E.xcCusiveCy Industrial SECOND AMENDED AND RESTATED LEGAL SERVICES AGREEMENT This Second Amended and Restated Legal Services Agreement is entered. into as of June 1, 2009 (the "Effective Date"), by and between THE CITY OF VERNON, a municipal corporation, ("City") and the LAW OFFICES OF ERIC T. FRESCH, LTD., a professional corporation ("FreschLaw"), based on the following-facts and circumstances: A. The City and FreschLaw entered into an Amended and Restated Legal Services Agreement on May 15, 2009 (the "First Amended Agreement"). B. The City and FreschLaw desire to enter into this Second Amended and Restated Legal Services Agreement (the "Second Amended Agreement") to modify and clarify each of their obligations and to govern their relationship. Effective as of the Effective Date, this Second Amended Agreement shall supersede and replace the First Amended Agreement in its entirety, and the First Amended Agreement 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 1. FreschLaw agrees to provide the City with the services of Eric T. Fresch under the employment term of this Second Amended Agreement, set forth in Article II, Section 2; below, 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 this Second Amended Agreement pursuant to the terms and provisions set forth below in Article IL 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 $36.5 per hour, and on each January 1, that this Second Amended Agreement is still in force and effect, said rate shall be adjusted by an amount of up to five percent (5%), upon the prior approval of the City or the City Administrator. 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. Employment. Effective as of the Effective Date, and throughout the term of Eric T. Fresch's employment, subject to the terms of Sections 2 and 8 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 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 -1- 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 ninety (90) days commencing on the Effective Date and expiring at the close. of business on the ninetieth (90th) day from the Effective Date (the "Term"); provided, however, that every ninety (90) days from the Effective Date, this Second Amended Agreement shall automatically, and without the need for. any action. or notice by either party, renew for an additional term of ninety (90) days, on the same terms and conditions as this Second Amended Agreement, unless either party to this Second Amended Agreement notifies the other in writing to the .contrary. at least thirty (30) days prior to the applicable ninetieth (90th) day. 3. Place of Employment. 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 a minimum of 75-1/3 hours per month for services as an Assistant City Attorney I at the FreschLaw base billing rate of $365 per hour. If FreschLaw fails to provide the services of Eric T. Fresch for the required number of 75-1/3 monthly hours, the City reserves the right to adjust the salary compensation of Eric T. Fresch accordingly.. FreschLaw shall deduct the monthly salary compensation of Eric T. Fresch from its monthly invoices for legal services as a first charge against additional legal. fees owed, if any, for that month. 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 not pay or reimburse FreschLaw or Eric T. Fresch for any expenses .incurred by FreschLaw or Eric T. Fresch in connection with the performance of services or duties under this Second Amended Agreement. Notwithstanding the above, if the City causes FreschLaw to employ consultants as referenced in Article I, Section 4, the City-shall pay FreschLaw for all costs and expenses incurred in connection with such undertaking 6. Other Benefits. Bric 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 -2- 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 75-1L3 hours of services per month notwithstanding any such vacations or holidays. 8. Termination. This Agreement may be 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. l respectively); (ii) grossly negligent, reckless or willful misconduct in Eric T: Fresch's performance of his duties and failure to cure such conduct within thirty (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 thirty (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 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 -3- 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, Ltd.: Law Offices of Eric T. Fresch, Ltd. 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 9. Such notices or other communications shall be effective upon receipt or refusal to accept delivery. 10. Inte rapt tion. 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. 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. 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- enforceableterm 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 -4- 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 Second Amended 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 8L Mediation Services; Inc. ("JAMS"). Without limiting any other provision herein, this Section 17 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. 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 ten (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 17.3 as if -5- such replacement was an initial appointment. to be made under this Section 17.3 within the time constraints set forth in this Section 17.3, 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 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 thirty (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 17~ave consulted w ith counsel concerning such terms, and- voluntarily agree to them. City's Initials FreschLa s Initials -6- Each of the parties has executed this Second Amended 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: ~ t Hilario onzales Mayor ATTEST: By: Manuela Giron City Clerk APPROVED AS O FORM: By: I^----~ A rrison y A ney LAW OFFICES OF ERIC T. FRESCH, LTD. (a professional corporation) By: Eric T. Fresch -7-