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HomeMy WebLinkAbout09760 City Clerk’s Office Item # C-1 Background Paper for Proposed Ordinance COUNCIL MEETING DATE: July 27, 2020 TO: Council President Dennis E. Flores and Members of City Council VIA: Brenda Armijo, City Clerk FROM: Mayor Nicholas A. Gradisar SUBJECT: AN ORDINANCE APPROVING A MEDIATION SERVICE CONTRACT BETWEEN THE CITY OF PUEBLO, A COLORADO MUNICIPAL CORPORATION AND PROFESSOR FRED GALVES AND RATIFYING THE MAYOR’S PRIOR SIGNATURE TO SAID CONTRACT SUMMARY: Attached is an Ordinance approving a Mediation Service Contract with Professor Fred Galves (“Mediator”) and ratifying the Mayor’s prior signature to said Contract. PREVIOUS COUNCIL ACTION: Not applicable to this ordinance. BACKGROUND: The intent of the attached Mediation Service Contract is that the Mediator shall provide mediation and consulting services to the City, in the attempt to resolve various issues and political/policy differences among and between many concerned members of the Pueblo Community related to the Christopher Columbus Monument Statue/Wall/Plaza located in the “Mesa Junction” neighborhood. Professor Fred Galves is uniquely qualified to serve as a mediator of the Columbus monument dispute. Professor Galves is a graduate of Pueblo South High School (1979); the Colorado College (1983) and the Harvard Law School (1986). Following law school, Professor Galves clerked for the Honorable John L. Kane, Jr. of the U.S. District Court for the District of Colorado. Between 1987 and 1993, Professor Galves practiced law at the prestigious Denver law firm of Holland and Hart. Between 1993 and 2015, Professor Galves was a full, tenured law professor at the University of the Pacific McGeorge Law School located in Sacramento, CA. Since leaving McGeorge Law School, Professor Galves has provided litigation consultant services and Alternative Dispute Resolution (ADR) services, including mediation, to numerous law firms and individuals. FINANCIAL IMPLICATIONS: Professor Galves’ normal fee for his services is $450 per hour. However, Professor Galves has offered to serve as a mediator to attempt to resolve the Columbus monument dispute at deeply discounted rates, as follows: Number of Hours Hourly Rate First 40 $100 Next 40 80 Until resolution or impasse 60 Under the attached proposed Contract, the Mediator will not charge for his personal travel time to and from Pueblo from California and the Mediator agrees to charge only for actual work performed on the mediation process. The attached proposed Contract also provides that the Mediator will be reimbursed by the City for airline travel to and from California to Colorado; will be reimbursed by the City for car rental costs while in Colorado; however, the Mediator will not charge for any hotel accommodations, or meals, while in Colorado, and will not charge the City for any gasoline used. BOARD/COMMISSION RECOMMENDATION: Not applicable to this Ordinance. ALTERNATIVES: City Council could decide not to hire a mediator. RECOMMENDATION: Not applicable to this Ordinance. Attachments: Proposed Ordinance; proposed Mediation Service Contract ORDINANCE NO. 9760 AN ORDINANCE APPROVING A MEDIATION SERVICE CONTRACT BETWEEN THE CITY OF PUEBLO, A COLORADO MUNICIPAL CORPORATION AND PROFESSOR FRED GALVES AND RATIFYING THE MAYOR’S PRIOR SIGNATURE TO SAID CONTRACT BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. The Mediation Service Contract dated of July 23, 2020, between the City of Pueblo, a Colorado municipal corporation and Professor Fred Galves, a copy of which is attached hereto (”Contract”) having been approved as to form by the City Attorney, is hereby approved. The Mayor is authorized to execute and deliver the Contract in the name of the City and his prior signature to the Contract, on July 23, 2020, shall be and hereby is ratified. The City Clerk is directed to affix the seal of the City to the Contract and attest same. SECTION 2. The officers and staff of the City are authorized and directed to perform all acts consistent with this Ordinance and the attached Contract to implement the policies and procedures described herein. SECTION 3. This Ordinance shall become effective on the date of final action by the Mayor and City Council nunc pro tunc July 23, 2020. Action by City Council: Introduced and initial adoption of Ordinance by City Council on July 27, 2020 Final adoption of Ordinance by City Council on August 6, 2020 President of City Council Action by the Mayor: ☒ Approved on August 7, 2020 . □ Disapproved on based on the following objections: _ Mayor Action by City Council After Disapproval by the Mayor: □ Council did not act to override the Mayor's veto. □ Ordinance re-adopted on a vote of , on □ Council action on _______ failed to override the Mayor’s veto. President of City Council ATTEST City Clerk MEDIATION SERVICE CONTRACT This agreement is between PROFESSOR FRED GALVES (3590 Almanor Road, West Sacramento, California, 95691), hereinafter "The Mediator," and THE CITY OF PUEBLO, a Colorado municipal corporation(1 City Hall Place, Second Floor, Pueblo,CO 81003),hereinafter "The City," to enter into this "MEDIATION SERVICE CONTRACT," hereinafter, "Contract," with the intent that The Mediator shall provide mediation and consulting services to The City, in the attempt to resolve various issues and political/policy differences among and between many concerned members of the Pueblo Community related to: The Christopher Columbus Monument Statue/Wall/Plaza, located on the "Mesa Junction" Plaza, directly across for the Pueblo City- County Library District- Rawlings (Main) Branch, located in Pueblo, Colorado, hereinafter"The CC Statue." Pursuant thereto, The Mediator and The City, collectively hereinafter, "The Parties," understand and agree as follows: 1. Nature of Mediation A. The City hereby appoints Professor Fred Galves as The Mediator for negotiations between representatives of concerned Pueblo residents, who have sufficient political and legal standing to represent the various conflicting interests regarding the CC Statute, who are members of the Pueblo Community, including, but not limited to, "The Sons of Italy" community group, and the"Native American"community group, collectively hereinafter, "The Participants." B. The intent of this Contract is for The Mediator to engage with The Participants — who are to be pre-selected by The City, with the advice and consent of The Mediator—to attempt to come to an understanding and agreement about the nature of the CC Statue and its future. C. The Parties understand, and will explain to The Participants, that mediation is an agreement-reaching process in which The Mediator assists The Participants to reach agreement in a collaborative, consensual and informed manner. D. The Parties understand, and will explain to The Participants,that The Mediator has no power to decide disputed issues for The Participants, or The City. E. The Parties understand, and will explain to The Participants, that mediation is not a substitute for independent legal advice or legal action. F. The Parties understand, and will explain to The Participants, that The Participants are encouraged to secure such advice throughout the mediation process and are strongly advised to obtain independent legal review of any mediated agreement before signing that agreement. G. The Parties understand, and will explain to The Participants, that The Mediator's objective is to facilitate The Participants themselves reaching their most constructive and fairest agreement. 1 H. The Parties understand, and will explain to The Participants,that The Mediator has an obligation to work on behalf of each Participant equally, and that The Mediator cannot render individual legal advice to any Participant, but can discuss legal as well as political implications, and possible consequences thereof, to The Participants collectively. I. The Parties understand, and will explain to The Participants, that there are no, and should be no,"Pre-Conditions"to the negotiation,and further explain to The Participants that they should enter these negotiations with an "open mind," and a general desire to reach a settlement agreement, if possible. 2. Scope of Mediation The Parties understand, and will explain to The Participants, that it is for The Participants, with the Mediator's concurrence, to determine the precise scope of the mediation and this will be accomplished early in the mediation process, with the starting assumption that "all options are on the table." 3. Mediation Is Voluntary A. The Parties understand, and will explain to The Participants,that ALL Participants will state their good faith intention to complete their mediation by an agreement. B. It is, however, understood that any Participant may withdraw from or suspend the mediation at any time, for any reason. C. The Parties understand,and will explain to The Participants,that The Mediator may suspend or terminate the mediation, with the advice and consent of The City, if He feels that the mediation will lead to an unjust or unreasonable result, if the mediator feels that an impasse has been reached, or if the mediator determines that He can no longer effectively perform His facilitative role. 4. Confidentiality A. The Parties understand,and will explain to The Participants,that the mediation will be strictly confidential. B. The Parties understand, and will explain to The Participants, that as such, all mediation discussions, including all written, oral and digital communications, with any and all Participants and their advisors, any draft resolutions, and any unsigned mediated agreements shall NOT be admissible in any court proceeding. C. The Parties understand,and will explain to The Participants,that ONLY a mediated agreement, signed by The Participants, may be so admissible. 2 D. The Parties understand,and will explain to The Participants,that the nature and the substance of their negotiations, or pending offers or current positions, should remain strictly confidential, until the Mediation is concluded, as deemed by The Mediator, and such information shall not be shared publicly and/or with any news or media outlet, or on social media; although The Mediator will be allowed to comment, but only very generally,on the Mediation process, and that The Participants are working on arriving at an agreement/mutual understanding. E. The Parties understand, and will explain to The Participants, that The Participants should further agree to not call The Mediator to testify concerning the mediation or to provide any materials from the mediation in any court proceeding between the participants. F. The Parties understand, and will explain to The Participants, that the mediation is considered by all to be settlement negotiations;however, The Parties understand,and will explain to The Participants, that The Mediator has an ethical responsibility to break confidentiality only if He suspects a party or another person may be in danger of physical harm. 5. Full Disclosure The Parties understand, and will explain to The Participants, that each Participant will agree to fully and honestly disclose all relevant information and writings as requested by The Mediator and all information requested by any other party of the mediation, if The Mediator determines that the disclosure is relevant to the mediation discussions. 6. Mediator Impartiality A. The Parties understand, and will explain to The Participants, that The Mediator must remain impartial throughout and after the mediation process,and although hired by The City, still has a legal and ethical duty to remain impartial at all times. B. The Parties understand, and will explain to The Participants, that The Mediator shall not champion the interests of any Participant over another in the mediation or in any court or other proceeding;however,the Mediator will be free to discuss the more general underlying issues with The Press, or other interested academic parties, or other interested individuals, after the Mediation has concluded. C. The Parties understand,and will explain to The Participants,that The Mediator may discuss The Participants' mediation process with any attorney that any Participant may retain as individual counsel. D. The Parties understand, and will explain to The Participants, that such discussions will not include any negotiations, as all mediation negotiations must involve all Participants directly. 3 E. The Parties understand,and will explain to The Participants,that The Mediator will provide copies of correspondence, draft agreements, and written documentation to independent legal counsel at a Participant's request. F. The Parties understand, and will explain to The Participants, that during the mediation process, The Mediator may communicate separately with any individual mediating party, in which case such "caucus" shall be confidential between The Mediator and the individual mediating party, unless they agree otherwise. G. The Parties understand,and will explain to The Participants,that The Mediator will be allowed,and be expected,to give The City very general updates on the status of the negotiations between the Participants during the Mediation Process, but in no event will be allowed to reveal confidential information and therefore must keep most information regarding the negotiations, or offers, or current positions, strictly confidential, unless The Participants agree to allow the Mediator to reveal such information to The City during general updates to The City about the mediation process. 7. Litigation The Parties understand, and will explain to The Participants, that The Participants should agree to refrain from pre-emptive maneuvers and adversarial legal proceedings (except in the case of an emergency necessitating such action), while actively engaged in the mediation process. 8. Good Faith During Negotiations The Parties understand, and will explain to The Participants, that while no Participant should be expected to give up any First Amendment right to continue protesting during these negotiations, The Mediator will request that The Participants refrain at least from any violent protests,or shows of force(with guns or arms)—including but not limited to, "protestors"or"anti-protestors"—as a show of good faith and cooperation during the mediation process. 9. Mediation & Consulting Fees A. The Parties (The City and The Mediator) agree that the fee for The Mediator shall be $100.00 per hour for time spent with The Participants and for any time required to study documents, research issues,correspond, telephone call,prepare draft and final agreements,and do such other things as may be reasonably necessary to facilitate The Participants' reaching full agreement. B. The Parties agree that the fee for The Mediator shall be $100.00 per hour for the first $40.00 of work, and then, if more work is required,that hourly rate will be reduced to $80.00 per hour for the next 40 hours of work, and finally, if more work is required after that, the hourly rate will be reduced to $60.00 per hour for all work completed after that point. 4 C. The Mediator shall be reimbursed for all expenses incurred as a part of the mediation process, according to the following provisions: (1) The Parties agree that The Mediator will not charge for His personal travel time to and from Pueblo from California; and The Mediator agrees to charge only for actual work performed on the mediation process. (2) The Parties agree that The Mediator will be reimbursed by The City for airline travel to and from California to Colorado,and will be reimbursed by The City for car rental costs while in Colorado;however, The Mediator will not charge for any hotel accommodations,or meals, while in Colorado, and will not charge the City for any gasoline used. (3) The Parties agree that any copying, postage and long-distance phone calls will be billed to The City; however, The Parties expect that such costs should be de minimus or even non-existent. D. The City agrees to a deposit payment of$1,000.00 toward The Mediator's fees and expenses to be paid to The Mediator along with the signing of this Contract. Any unearned amount of this deposit fee would be refunded to The City. E. The Mediator will provide The City with a monthly accounting of fees and expenses by The Mediator. Payment of such fees and expenses is due to The Mediator no later than 15 days following the date of such billing, unless otherwise agreed in writing. F. Should payment not be timely made,The Mediator may,at His sole discretion,stop all work on behalf of The Participants, including the drafting and/or distribution of The Participants' agreement, and withdraw from the mediation. Dated this 23rd day of July, 2020 Signatures: .4,(A9'1\ PROFESSOR FRED G LVES ("The Mediator") CITY OF PUEBLO,A COLORADO MUNICIPAL CORPORATION ATTEST: ("The City") B : A! By: Brenda Armijo Nicholas A. radisar City Clerk Mayor 5