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HomeMy WebLinkAbout12768RESOLUTION NO. 12768 A RESOLUTION ENGAGING FISHER & PHILLIPS, LLP, TO PROVIDE LEGAL SERVICES RELATING TO BINDING INTEREST ARBITRATION WITH THE INTERNATIONAL BROTHERHOOD OF POLICE OFFICERS LOCAL 537 AND BINDING INTEREST ARBITRATION WITH THE INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS LOCAL 3 BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. The Legal Services Agreement between Fisher & Phillips, LLP, and the City of Pueblo, a copy of which is attached hereto, having been approved as to form by the City Attorney, is hereby approved. The City Attorney is authorized to execute the engagement letter on behalf of the City. SECTION 2. Funds for services to be performed and costs expended in such representation shall be paid from Account No. 101-2030-421.30-01. SECTION 3. The officers and staff of the City are directed and authorized to perform any and all acts consistent with the intent of this Resolution and the attached Legal Services Agreement to effectuate purposes of same. SECTION 4. This Resolution shall become effective immediately upon final passage. INTRODUCED: August 12, 2013 BY: Chris Kaufman PASSED AND APPROVED: August 26, 2013 Background Paper for Proposed RESOLUTION DATE: August 12, 2013 AGENDA ITEM # Q-1 DEPARTMENT: Law Department Daniel C. Kogovsek, City Attorney TITLE A RESOLUTION ENGAGING FISHER & PHILLIPS, LLP, TO PROVIDE LEGAL SERVICES RELATING TO BINDING INTEREST ARBITRATION WITH THE INTERNATIONAL BROTHERHOOD OF POLICE OFFICERS LOCAL 537 AND BINDING INTEREST ARBITRATION WITH THE INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS LOCAL 3 ISSUE Should the City engage Fisher & Phillips, LLP, to provide legal services relating to binding interest arbitration with the International Brotherhood of Police Officers Local 537 (“IBPO Local 537”) and binding interest arbitration with the International Association of Fire Fighters Local 3 (“IAFF Local 3”)? RECOMMENDATION Approve the engagement. BACKGROUND Pursuant to Section 8-14, City Charter, the City is required to submit to binding interest arbitration all unresolved issues in negotiating successor contracts with both IBPO Local 537 and IAFF Local 3. IBPO Local 537 historically and IAFF Local 3 currently have utilized legal counsel who specialize in such matters to represent them. It would be in the best interest of the City to engage the services of legal counsel who also specialize in such representation. FINANCIAL IMPACT Funds for services to be performed and costs expended in such representation shall be paid from Account No. 101-2030-421.30-01. In no event shall the amount exceed $65,000. FISHER 8 PHILLIPS LLP ATTORNEYS AT LAW Denver Suite 3300 www.Iaborlawyers.com 1999 Broadway Denver, CO 80202 -3025 (303) 218- 3650TeI (303) 218 -3651 Fax Writer's Direct Dial: July 31, 2013 (303) 218 -3660 Writer's E -mail: tfredrickson@laborlawyers.com Mr. Daniel C. Kogovsek City Attorney City of Pueblo Law Department 503 N. Main St., Suite 203 Pueblo, CO 81003 Dear Mr. Kogovsek: Thank you for selecting Fisher & Phillips LLP to assist you with the 2013 Police and Fire Union Arbitrations. The principal factors in determining our fees will be the time and effort devoted to the matter and the hourly rates of the lawyers and legal assistants involved. My current hourly rate is $420.00, less the 20% discount previously agreed upon for an effective hourly rate of $336.00. A similar discount will be applied to the hourly rate of any other attorney, law clerk or paralegal who work on this matter. Our hourly rates range from $580.00 for our most experienced attorneys to $220.00 for our most junior attorneys. Depending on experience, the rates of law clerks and legal assistants range from $120.00 to $290.00. In addition, we have agreed to cap the total fees for both matters at $65,000. City of Pueblo will only be billed for work performed during arbitration, but those billings will not exceed $65,000 for both matters combined. This engagement is subject to the terms and conditions of Exhibits A and 1, both attached and incorporated herein by reference. Other charges are explained in the accompanying Appendix, which sets forth in greater detail the terms on which we will represent you. If you agree to these terms, please countersign the enclosed copies of this letter and the Appendix and return them for our files. We appreciate the confidence you have shown by selecting us as your counsel in this matter, and we look forward to working with you. Atlanta • Baltimore • Boston - Charlotte • Chicago • Cleveland - Columbia • Columbus - Dallas • Denver • Fort Lauderdale • Gulfport • Houston • Irvine Kansas City • Las Vegas - Los Angeles • Louisville • Memphis • New England • New Jersey • New Orleans • Orlando • Philadelphia Phoenix • Portland • San Diego San Antonio • San Francisco Tampa • Washington, DC Mr. Daniel C. Kogovsek July 31, 2013 Page 2 • Please call me if you have any questions about our arrangement. Very truly yours, o /V/ 4 „, t4 14,1,4--t-------- dd A. Fredrickson For FISHER & PHILLIPS LLP I have read and understood the foregoing, and 1 accept the terms and conditions as set forth herein on behalf of the City of Pueblo. City of Pueblo By: IAA <- Eft. - .,r. Date Daniel C. Kogovsek City Attorney TAF: hmv Enclosures APPENDIX SUMMARY OF ENGAGEMENT We appreciate your confidence in selecting Fisher & Phillips LLP to represent you in connection with the matter described in the accompanying letter. The rules of professional responsibility applicable to lawyers strongly encourage written agreements between lawyers and their clients to ensure that there are no misunderstandings that could compromise the representation. For that reason, this sets forth the standard terms of our engagement as your lawyers. Unless modified in writing by mutual agreement, these terms will be an integral part of our agreement with you. Therefore, we ask that you review this statement carefully and contact us promptly if you have any questions. We suggest that you retain this statement in your file. Scope and Duration of Representation It is our policy that the person or entity that we represent is the person or entity that is identified in our engagement letter. Unless the Firm agrees in writing to do so, our engagement does not include any employees, affiliates, or members of that person or entity. Our practice focuses on advising and representing employers and comparable entities in matters arising under the laws governing labor, employment, and discrimination, and our representation is limited to the matter or matters described in the accompanying letter (although the scope of that representation might be enlarged by a supplemental engagement letter). We do not provide advice or representation concerning whether any matters are covered by a client's insurance policies, and, in the event of a dispute over coverage, we cannot advise or represent you In connection with such a dispute. We therefore urge you to review your policies to determine whether any matter for which you might retain us is covered by such a policy; if you believe that the policy might cover any such matter, it will be your responsibility to notify the insurance company. We do not practice securities law or corporate law, and we do not advise our clients on such matters. Neither do we undertake to determine or advise our clients whether any particular matter or potential matter is material or must be disclosed for financial -audit purposes. An attorney- client relationship will exist between us for the duration of the matter for which we have been engaged, unless that relationship is earlier terminated in writing by either of us. In cases in which we have been engaged to provide general labor and employment advice, the relationship will end twelve months after the last substantive work you ask us to perform. The term "substantive work" does not include routine responses to auditors' requests. During the representation, our advice will of course be consistent with applicable legal principles and interpretations as of the date we provide it. However, those principles and interpretations are subject to change, and we cannot undertake to advise you of later changes at our own initiative. We will be pleased to respond to future requests that we reevaluate our advice in the light of any such developments. Fees and Charges in addition to the fees for legal services described in the accompanying letter, we will charge you for long- distance telephone calls, travel -and- lodging, photocopying, express delivery, facsimile transmissions, computer -aided legal research, and similar items connected with our handling your work. Ordinarily, these amounts will be set forth separately on your billing statement. Please let us know should you have any questions about the way in which we compute non -fee charges. On some occasions, there might be third -party charges, such as for deposition transcripts, outside printing or copying, expert witnesses, or any one of a variety of other things. Our policy is to submit all invoices from third -party vendors to you client for direct payment, and we request that you pay these invoices immediately. We do not charge for secretarial overtime, and we do not bill for time spent in travel unless (1) we are working while we travel; or (ii) the travel occurs during our normal 9:00 a.m. -to- 6:00 p.m. workday. We make our best effort to travel outside our normal workday. Billing Procedures Our practice is to send bills on a monthly basis. Our statements generally cover fees and charges for the prior calendar month, although sometimes fees or charges might not be immediately available for one reason or another and will therefore be billed later. We ask that our statements be paid within 30 days after receipt. If you ever have questions about an invoice, please do not hesitate to contact us promptly to discuss them. If for any reason a statement cannot be paid within 30 days after receipt, please call us promptly so that we can discuss this. Payments to Trust Accounts All trust deposits we receive from you will be placed in a trust account for your benefit. As required by law, your deposit will be placed in a pooled account if it is not expected to earn a net return, taking into consideration the size and anticipated duration of the deposit and the transaction costs, with the interest earned on the pooled account being payable to a charitable foundation as provided by law. Trust deposits that are expected to earn a net return will also be placed in the pooled account, unless you request a segregated account. Interest earned on the segregated trust account will be added to the deposit for your benefit. Communications It is of course essential that clients and attorneys communicate effectively with one another to exchange information and to discuss developments and possible courses of action. Naturally, we will keep you informed as developments occur and will consult with you as to the appropriate steps to take. By the same token, we ask that you keep us informed of your objectives and wishes and that, if we ask for specific information or for instructions necessary to our adequately carrying out our representation, you will respond accurately, completely, and as quickly as possible. As you know, communications between clients and attorneys are generally privileged and are not discoverable by third parties. However, recent court decisions have emphasized how easily that privilege can be lost, such as where attorney correspondence is routed through a client's routine intra -office mail, or where attorney /client communications are discussed with persons outside the attorney /client relationship. Any practical steps you can take to ensure that 2 our attorney /client communications are not disclosed to third parties will be invaluable in protecting your right to claim that privilege. Avoidance of Conflicts In the event you have a potential dispute with a third party, and you wish to discuss with us the possibility of us representing you in connection with that potential dispute, we request that you do not disclose the nature of that dispute or any relevant facts until you have provided us with the name of the potential adverse party and afforded us the opportunity to determine whether the representation would create a conflict with another client. Similarly, because we represent a number of staffing agencies or Professional Employee Organizations (PEOs), it is important that, before you ask us to comment upon such an entity's actions taken, advice given, or services otherwise rendered, you first disclose to us the name of that organization or agency. Termination of Representation You may terminate our representation at any time, with or without cause, by notifying us. if you do, papers and property which you have provided to us will be returned to you promptly upon receipt of payment for outstanding fees and costs. Our internal files regarding administrative matters pertaining to the case will be retained. Termination of our services will not affect your responsibility for payment of legal services rendered and additional charges incurred both before termination and in connection with an orderly transition of the matter, including the copying of any files that you request that we provide to you or to substitute counsel. The rules of professional responsibility for the jurisdictions in which we practice list several types of conduct or circumstances that require or allow us to withdraw from representing a client. These include, for example: nonpayment of fees or costs, use of our services to perform a criminal or fraudulent act, misrepresentation of or failure to disclose material facts, action contrary to our advice, and conflicts -of- interest with another client. In addition, we reserve the right to stop our work for you if you fail to cooperate with us, or if any account is past due and we have been unable to agree on a mutually acceptable plan for payment. You agree that we may withdraw from the representation under these circumstances, subject to court approval where such approval is required for such withdrawals. In the event we seek to withdraw, you agree to engage new counsel immediately. Document Retention At the conclusion of the Representation, we return to the client any documents that are specifically requested to be returned. As to any documents so returned, we might elect to keep a copy of the documents in our files. At the close of any matter, we generally purge our files in that matter of unnecessary materials and send the retained materials to a storage facility for storage at our expense. We will maintain the files in storage for a period of ten years. After that time, we reserve the right to destroy the documents in the stored files without further notice to you. You hereby consent to such destruction of your documents in our files, unless we receive from you, within ten years after the close of the matter, written instructions for a different disposition of your documents. 3 Your Right to Arbitrate Fee Disputes If you disagree with the amount of our fee, please take up the question with your principal lawyer contact or with the Firm's managing partner. Typically, such disagreements are resolved to the satisfaction of both sides with little inconvenience or formality. In the event of a fee dispute which is not readily resolved, you have the right to request arbitration under supervision of the state or district bar associations for the jurisdictions in which we practice, and we agree to participate fully in that process. Errors -and- Omissions Insurance The rules of professional responsibility applicable to attorneys in some states require that law firms advise clients whether the firms have errors - and - omissions insurance coverage. Fisher & Phillips of course does have such coverage. Miscellaneous Matters We publish a bi- monthly Labor Letter and other, more - narrowly - focused newsletters in which we cover topical matters relating to employment laws and labor relations. In addition, when circumstances warrant, we publish a Labor Alert to let our clients know about particularly time - sensitive issues of importance. These publications are intended to keep our clients advised about matters which we think will be of interest to them. Of course, due to the generalized nature of these publications, we cannot undertake to address in them every pertinent legal development which might be important to a particular client, and the materials published therein do not constitute legal advice. We also present seminars periodically. In these seminars, we discuss a broad spectrum of relevant labor- and employment -law issues. These seminars are provided as a service to our clients, and you will be invited to them as they are scheduled. I have read and understood the foregoing, and I accept the terms and conditions set forth herein. City of Pueblo , 3 B y ; ►� 1�,,� -� Date Daniel C. Kogovsek City Attorney, City of Pueblo Law Department 4 Exhibit "A" State- lVxandatod or Related Contract Clauses As used in this section, "Contractor" shall mean the firm or entity (whether referred to as Consultant, Company, Contractor, Architect, Accountant or by other term) entering into this Agreement with Pueblo, a Municipal Corporation (which may be referred to in this Agreement as City, Client, Customer or by other term). PERA LIABILITY. Contractor shall reimburse the City for the full amount of any employer contribution required to be paid by City to the Public Employees' Retirement Association ( "PERA ") for salary or other compensation paid to a PERA retiree performing contracted services for the City under this Agreement. Contractor shall fill out the questionnaire attached as Exhibit "1" and submit the completed form to City as part of the signed Agreement. TATE- IMPOSED DAT S P 1 JBITING IL.. AL ALIENS FROM PERFO -ING WORK UNDER THIS CONTRACT. (a) At or prior to the time for execution of this Contract, Contractor shall submit to the Purchasing Agent of the City its certification that it does not knowingly employ or contract with an illegal alien who will perform work under this Contract and that the Contractor will participate in either the E -Verify Program" created in Public Law 208, 104 Congress, as amended and expanded in Public law 156,108' Congress, as amended, that is administered by the United States Department of Homeland Security or the "Department Program" established pursuant to section 8-17.5 - 102(5)(c), C.R.S. that is administered by the Colorado Department of Labor and Employment in order to confirm the employment eligibility of all employees who are newly hired for employment to perform work under this Contract. (b) Contractor shall not (I) Knowingly employ or contract with an illegal alien to perform work under this Contract; (II) Enter into a contract with a subcontractor that fails to certify to Contractor that the subcontractor shall not knowingly employ or contract with an illegal alien to perform work under this Contract. (c) The following state- imposed requirements apply to this Contract: (I) The Contractor shall have confirmed the employment eligibility of all employees who are newly hired for employment to perform work under this Contract through participation in either the E- Verify Program or Department Program. (II) The Contractor is prohibited from using either the E- Verify Program or Department Program procedures to undertake pre - employment screening of job applicants while this Contract is being performed. (III) If the Contractor obtains actual knowledge that a subcontractor performing work under this Contract knowingly employs or contracts with an illegal alien to perform work under this Contract, the Contractor shall be required to: A. Notify the subcontractor and the Purchasing Agent of the City within three (3) days that the Contractor has actual knowledge that the subcontractor is employing or contracting with an illegal alien; and B. Terminate the subcontract with the subcontractor if within three (3) days of receiving the notice required pursuant to subparagraph (c)(1II)A. above the subcontractor does not stop employing or contracting with the illegal alien; except that the Contractor shall not terminate the contract with the subcontractor it during such three (3) days, the subcontractor provides information to establish that the subcontractor has not knowingly employed or contracted with an illegal alien. (IV) The Contractor is required to comply with any reasonable request by the Colorado Department of Labor and Employment (hereinafter referred to as CDLE) made in the course of an investigation that CDLE is undertaking pursuant to its authority under ' 8- 17.5- 102(5), C.R.S. (d) Violation of this Section by the Contractor shall constitute a breach of contract and grounds for termination. In the event of such termination, the Contractor shall be liable for City's actual and consequential damages. (e) Nothing in this Section shall be construed as requiring the Contractor to violate any terms of participation in the E- Verify Program. • EXHIBIT "I" COLORADO PUBLIC EMPLOYEES REl1REMENT ASSOCIATION SUPPLEMENTAL QUESTIONNAIRE TO BE ANSWERED BY ANY BUSINESS PERFORMING SERVICES FOR THE CITY OF PUEBLO Pursuant to section 24-51-1101(2), C.R.S., salary or other compensation from the employment, engagement, retention or other use of a person receiving retirement benefits (Retiree) through the Colorado Public Employees Retirement Association (PERA) in an individual capacity or of any entity owned or operated by a PERA Retiree or an affiliated party by the City of Pueblo to perform any service as an employee, contract employee, consultant, independent contractor, or through other arrangements, is subject to employer contributions to PERA by the City of Pueblo. Therefore, as a condition of contracting for services with the City of Pueblo, this document must be completed, signed and returned to the City of Pueblo: (a) Are you, or do you employ or engage in any capacity, including an independent contractor, a PERA Retiree who will perform any services for the City of Pueblo? Yes (b) If you answered "yes" to (a) above, please answer the following question: Are you an individual, sole proprietor or partnership, or a business or company owned or operated by a PERA Retiree or an affiliated party? Yes , No . If you answered "yes" please state which of the above entities best describes your business: (c) If you answered "yes" to both (a) and (b), please provide the name, address and social security number of each such PERA Retiree. Name Name Address Address Social Security Number Social Security Number (If more than two, please attach a supplemental list) Failure to accurately complete, sign and return this document to the City of Pueblo may result in your being denied the privilege or doing business with the City of Pueblo. If you answered "yes" to both (a) and (b), you agree to reimburse the City of Pueblo for any employer contribution required to be paid by the City of Pueblo to PERA for salary or other compensation paid to you as a PERA Retiree or paid to any employee or independent contractor of yours who is a PERA Retiree performing services for the City of Pueblo. You further authorize the City of Pueblo to deduct and withhold all such contributions from any moneys due or payable to you by the City of Pueblo under any current or future contract or other arrangement for services between you and the City of Pueblo. Signed J t 11 3 1 ,• 20 1 3 By ./1 + - � - � Name: L "— f-.- '`"? -- Title: For purposes of responding to question (b) above, an affiliated party includes (1) any person who is the named beneficiary or cobeneficiary on the PERA account of the PERA Retiree; (2) any person who is a relative of the PERA Retiree by blood or adoption to and including parents, siblings, half - siblings, children, and grandchildren; (3) any person who is a relative of the PERA Retiree by marriage to and including spouse, spouse's parents, stepparents, stepchildren, stepsiblings, and spouse's siblings; and (4) any person or entity with whom the PERA Retiree has an agreement to share or otherwise profit from the performance of services for the City of Pueblo by the PERA Retiree other than the PERA Retiree's regular salary or compensation.