Res No 210-11-13524RESOLUTION NO. 210-11-13524
A Resolution to amend the City Manager's agreement entered into
with City of South Miami, deleting the provision granting the City an
option to renew and increasing the existing three (3) year term of the
Employment Agreement by an additional two (2) years.
WHEREAS, an Agreement is necessary to establish the employment
relationship, salary, benefits, and responsibilities of the City Manager; and
WHEREAS, the City entered into a three (3) year Employment Agreement with
Dr. Hector Mirabile, Ph.D., on September 21, 2010 for his services as the City of South
Miami's City Manager; and
WHEREAS, the City desires to extend his agreement for an additional two (2)
years.
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA THAT:
Section 1: The Mayor is hereby authorized to sign, on behalf of the City, an
amended City Manager's Employment Agreement deleting the provision granting the
City an option to renew the City Managers existing agreement and increasing the
existing three (3) term of the agreement by an additional two (2) years. A copy of the
agreement is attached to this resolution.
Section 2. This resolution shall become effective immediately upon adoption by
vote of the City Commission.
PASSED AND ADOPTED this 15 thday of November , 2011.
AT T:
Page 1 of 1
APPROVED:
r
v,
COMMISSION VOTE:
Mayor Stoddard:
Vice Mayor Newman:
Commissioner Beasley:
Commissioner Palmer:
Commissioner Harris:
3 -1
Yea
Yea
Nay
absent
Yea
AMENDED EMPLO Ml NT AGREEMENT
Nov��
This Amended Employment Agreement ( "Agreement ") is entered into on Orirrber 2011,
between the City of South Miami, a municipal corporation ( "City ") and hector Mirabile, Ph.D_
( "Employee "), collectively referred to as the Parties ( "Parties ").
BACKGROUND
WHEREAS, an Agreement is necessary to establish the employment relationship, salary,
benefits, and responsibilities'of the City Manager; and
WHEREAS, the City entered into a three (3) year Employment Agreement with Dr. hector
Mirabile, Ph.D., on September 21, 2010 for his services as the City of South Miami's City Manager;
and
WHEREAS, the City desires to amend the City Manager's contract to extend his contract for
an additional two (2) years.
AMENDED AGREEMENT
Novo, therefore, for consideration the parties agree as follows:
I. Employment.
1.1 City agrees to employ Employee as City Manager to perform the duties and
exercise powers as provided by State law, the City Charter and the City Code, and to perform such
other legally permissible and proper duties and functions consistent with the Employee's position as
City Manager as may be assigned by the City Commission from time to time.
1.2 Employee shall report to the City Commission. Employee hereby accepts.
such employment: During the Term of Employee's employment by City, Employee shall (a) devote
substantially all of his/her full business time, abilities and attention exclusively to the diligent
performance of his duties with City in a professional manner and in accordance with applicable law
and (b) not engage in any other business activity, whether or not such activity is pursued for profit or
(Mrssosst_s)
advantage; provided, however, that Employee may engage in personal and /or passive investment and
charitable activities and continue to be a member of the board of directors for public service
companies (such as the United Police Federal Credit Union), so long as such activities do not
materially interfere with the performance of his duties under this Agreement and do not result in a
conflict of interest in regards to Employee's duties and obligations to the City.
1.3 Meetine Employee's Obligation. Employee shall be deemed having complied
with Employee's professional obligations to the City if:
(i) The Financial position. of the City is within the parameters as set forth
in the approved budget of the City
(ii) The City does not have grounds to terminate Agreement for cause
under Section 4.1 of the Agreement; and
(iii) Employee keeps the City's budget within approved parameters except
that this standard can be reasonably exceeded if unexpected or
unforeseen circumstances (act of God, hurricane, civil disturbance)
occur or unanticipated commission approved expenditures; and
(iv) Employee establishes and maintains a professional working
relationship with other local governments as needed, in Employee's
discretion, to ensure economies of scales and inter -city mutual
agreements.
(v) Employee communicates with the commission on all matters related to
new ordinances or resolutions with appropriate backup documentation
so that the commission as a whole may make appropriate decisions.
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(vi) Employee informs the commission of specific commission identified
critical information requirements which may be amended from time to
time.
(vii) Employee performs his duties set forth in the City Charter and carries
out Commission directives.
2. Terns. Except as otherwise provided in this Agreement, the Term of this Agreement
which originally commenced on September 21, 2010, when Employee was first hired as the City
Manager, shall terminate at the close of business on September 20, 2015 (the "Term ").
3. Compensation, During the course of Employee's employment by City, pursuant to
this Agreement:
3.1 Annual Salary. Employee shall be paid an annual salary of $140,000.00,
which shall be payable in equal installments on a bi- weekly basis in accordance with City's
compensation practices; provided, however, if City establishes another pay period for its employees
which is no less frequent than semi - monthly, Employee shall be paid in accordance with that
schedule. Employee's salary shall be subject to adjustments due to cost of living increases during
the Term, but at least yearly, at the sole discretion of the City Commission and such increases, if
any, shall establish the new base salary for the Employee.
Employee:
3.2 _Fringe Benefits. During the Term, City, at its cost, shall make available to
3.2.1 hnsurance. The City agrees to pay Employee $6$0 per month to cover his
health insurance premium for him and his family. This sum shall be subject to an upward or
downward adjustment depending upon. the Manager's then current cost of maintaining his family
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health insurance policy obtained through his prior employer. The City shall further provide
Employee with a life insurance benefit equivalent to one (1) year base salary.
3.2.2 Automobile. The Employee shall receive a vehicle allowance in the
amount of $650 per month unless and until the City provides the Employee' with a vehicle for his use
and pays for the gasoline used in the connection with the use of such vehicle. City shall include the
vehicle on the schedule of vehicles for which the City maintains automobile casualty and liability
insurance coverage. City shall provide maintenance and fuel for the vehicle upon the same basis that
it provides maintenance and fuel for other vehicles within the municipal fleet. The City will provide
a Sunpass with the vehicle and the Sunpass account will be maintained at the City's expense.
3.23 Vacation and Sick Leave. Employee shall accrue 2.33 vacation days per
month. The vacation leave taken by the Manager will be taken at such time or times as will least
interfere with the performance of his duties. Additionally, at time of separation, all vacation hours
up to 400 hours will be paid out at 100 %.
(a) Employee shall. receive one (1) day or (8) hours per month of
sick time or such additional sick time, if greater, as is provided to City's senior management The
sick time may be accrued and rolled over to a later date and shall otherwise be consistent with City
policies for senior management.
(b) Employee shall be entitled to holidays in the same manner as
senior management employees of the City.
3.2.5 Pension, The City shall contribute I1% of base salary per year as a
contribution to Employee's City sponsored retirement plan or any other retirement plan (401a)
selected by Employee for his benefit. Employee shall be allowed to contribute any amount in
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addition to the contribution by the City to the qualified retirement plan (401 a) or (457b) up to the
maximum allowable by law.
3.2.6 Cellular telephone. The Employee shall receive a cellular telephone
allowance in the amount of $150.00 per month.
3.2.7 Equipment. City shall provide Employee, at City's cost, with
equipment necessary to fulfill Employee's duties, including but not limited to electronic equipment,
computer, etc.
3.3 Expenses. City shall pay for or reimburse Employee for all ordinary,
necessary and reasonable business expenses incurred or paid by Employee in furtherance of City's
objectives, all of which shall be reimbursed and paid in accordance with City's policies and
procedures of general application. The City shall provide Employee with a credit card to be used by
Employee to pay for these expenses.
3.4 Professional Development. Subject to City policy and State law, the City
agrees to pay the reasonable professional dues and subscriptions of Employee necessary for his
continuation and participation as a member in national, regional, state and local professional
associations and organizations necessary and desirable for his continued professional participation,
growth and advancement, and for the good of the City as permitted by the City's Budget. City shall
pay for all necessary and reasonable continuing education for Employee as determined by Employee
in his reasonable discretion and as funded by the City's Budget.
4. 'Termination. The City Commission may terminate the Employee for Cause as
specified below and in accordance with Article 111, Section. 3. Removal, of the City of South Miami
Charter. The specifics for the termination must be enumerated in writing to the Employee 5 days
prior to the Commission Meeting where the termination vote will be heard.
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4.1 Termination for Cause. For purposes of this Agreement, a termination by
Employer for "Cause" shall mean termination by action of Employer pursuant to this Section 4.1.
Employer shall have the right to terminate Employee for Cause upon the occurrence of one or more
of the following events:
4.1.1 A determination by a majority of the City Commission made
reasonably and in good faith that Employee has breached this Agreement in any material respect.
4.1.2 Employee's conviction by a court of competent jurisdiction of fraud
with respect to the business or affairs of Employer or any affiliated person or entity of Employer.
4.1.3 Employee is found by a court of competent jurisdiction to have
violated Employer's anti- harassment policy.
4.1.4 Excessive alcohol or drug usage by Employee to an extent that it
interferes with the performance of Employee's duties under this Agreement.
4.1.5 The conviction by a court of competent juzi.sdiction of, or pleading
nolo contendre by, Employee of (a) a misdemeanor involving dishonesty, fraud, theft,
misappropriation, embezzlement or the like or (b) a felony.
4.I.6 Employee, by reason of mental or physical disability or illness, is
unable to perform the essential functions of his job, as described in Section 1, with reasonable
accommodation, for more than an aggregate of 180 days in any consecutive 12 -month period.
4.1.7 A willful violation of the City's Charter.
4.1.8 The death of Employee.
4.2. Termination for cause dispute procedures. In the event majority of the
Commission elects to terminate Employee for cause pursuant to Section 4.I,
Employee may elect to dispute the termination for cause through mediation-
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4.11 The City shall furnish Employee with a list of at least five (5)
proposed mediators. The Employee shall review such list and agree with the City's choice or make
an alternate choice for the City's consideration from the list or disapprove the list and return to the
City for additional recommended names within five (5) business days. Once a mediator is chosen by
both parties the mediation shall take place at the first available opportunity of the mediator. The
City shall bear the total cost of the mediation process.
42.2 if the mediation process fails to achieve a mutually agreed
upon resolution or settlement of the dispute, and the Employee desires to dispute the termination for
cause, the Employee shall file a demand for arbitration with the American Arbitration Association
within seven (7) working days of the mediator's declaration of an impasse.
4.2.3. The arbitration shall be conducted under the rules of the
American Arbitration Association. Subject to the following, the Arbitrator shall have jurisdiction
and authority to decide a dispute solely arising from the specification of this agreement. The
Arbitrator shall have no authority to change, amend, add to, subtract from, or otherwise alter or
supplement this agreement, or any part thereof, or any amendment hereto.
4.2.4. it is contemplated that the City and the Employee shall
mutually agree in writing as to the statement of the matter to be arbitrated prior to a hearing; and if
this is done, the Arbitrator shall confine his decision to the particular matter thus specified.
4.2.5 Each party shall bear the expense of its own witnesses and of
its own representatives . The Employee and the City shall bear equally the expense of the impartial
Arbitrator, including any retainer fee of the Arbitrator. The party desiring a transcript of the hearing
will bear the cost of same.
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4.2.6 Copies of the award of the arbitration made in accordance with
the jurisdiction or authority under this agreement shall be furnished to both parties within thirty (3 0)
days of the hearing and shall be final and binding on the Employee and the City.
4.2.7 The Arbitrator shall be selected in accordance with the rules of
the American Arbitration Association,
42.8 Upon a final determination by the arbitrator that the City has
breached the Agreement, Employee shall be entitled to receive back pay, including all salary and
benefits set forth in this Agreement, through.the date of the award, and Employee shall also be
reinstated to the position of City Manager.
4.2.9 Upon the final determination by the arbitrator that the
Employee breached the Agreement or that the City otherwise had good cause to terminate the
Employee, Employee shall be entitled to receive only the salary and other benefits which Employee
had earned through the effective date of such termination, and Employee shall not receive any
compensation or benefits in respect of any periods after the effective date of such termination.
4.3 Termination Upon Voluntary Resignation. in the event Employee voluntarily
resigns his employment with City, Employee shall be entitled to receive the annual salary and other
benefits, which Employee earned through the effective date of such resignation; provided, however,
following receipt of Employee's resignation, City shall have the right to accelerate the effective date
of Employee's resignation, provided it agrees to pay to Employee the amounts Employee would
otherwise be paid hereunder through the intended resignation date.
4.4. Termination Other Than by Voluntary Resignation or For Cause. Employer
may end the employment relationship and terminate this Agrecment,.at the pleasure of the majority
of the Commission, without good cause. If the Employee is terminated without good cause he shall
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immediately be re- assigned from the position of City Manager to City Consultant. In that capacity,
the Consultant shall provide off-site advice to the new City Manager and City Attorney to assist
them with various pending projects. Consultant will for the shorter. of a period of six (6) months or
the period of employment remaining under this Agreement (or any extension or renewal thereof),
following the Commission's re- assignment of him from City Manager to City Consultant receive all
of the salary and benefits provided for by this Agreement, but Consultant will have no further
authority to bind the City or to take any further action on behalf of the City.
S. Withholding. Anything to the contrary notwithstanding, the annual salary and other
payments required to be made by City under this Agreement to Employee or Employee's estate or
beneficiaries shall be subject to the withholding of such amounts, if any, relating to tax and other
payroll deductions as Employer may reasonably determine it should withhold pursuant to applicable
law or regulation.
6. Miscellaneous.
6.1 Notices. All notices, demands or requests provided for or permitted to be
given pursuant to this Agreement must be in writing and shall be delivered or sent, with the copies
indicated, by personal delivery, telecopy (with confirmation and additional copy sent by overnight
delivery service) or overnight delivery service (by a reputable international carrier.) to the parties as
follows (or at such other address as a party may specify by notice given pursuant to this Section):
To City: Philip IC, Stoddard, Ph. D.
(or the then current Mayor)
6130 Sunset Drive
South Miami, FL 33143 -5093
With a copy to: Thomas F. Pepe, Esq.
(or the then current City Attorney)
6130 Sunset Drive
South Miami, FL 33143 -5093
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Maria M. Menendez, CMC
(or the then current City Clerk)
6130 Sunset Strive
South Miami, FL 33143 -5093
To Employee: Rector Mirabile, Ph, D.
18720 SW 7' Street
Pembroke Pines, EL 33029
All notices shall be deemed given and received one business day after their delivery to the
addresses for the respective party, with the copies indicated, as provided in this Section.
6.2 Entire Agreement. This Agreement and any other contemporaneous written
agreements entered into by the parties contain the sole and entire binding- agreement between and
representations made by the parties to each other and supersede any and all other prior Resolutions,
written or oral agreements and representations between them.
6.3 Amendment. No amendment or modification of this Agreement shall be valid
unless in writing and duly executed by the parties affected by the amendment or modification.
6.4 Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the parties and their respective representatives, heirs, and successors.
6.5 Waiver. Any waiver or changes to this agreement by either party of any
breach of any provision of this Agreement must be in written form, signed by both parties, and shall
not be considered as or constitute a continuing waiver or a waiver of any other breach of the same or
any other provision of this Agreement.
6.6 Construction. In the construction of this Agreement, whether or not so
expressed, words used in the singular or in the plural, respectively, include both the plural and the
singular and the masculine, feminine and neuter genders include all other genders. Since both
10
parties have engaged in the drafting of this Agreement, no presumption of construction against any
party shall apply.
6.7 Section References. All references contained in this Agreement to Sections
shall be deemed to be references to Sections of this Agreement, except to the extent that any such
reference specifically refers to another document. All references to Sections shall be deemed to also
refer to all subsections of such Sections, if any.
6.8 Severability. In the event that any portion of this Agreement is illegal or
unenforceable, it shall affect no other provisions of this Agreement, and the remainder of this
Agreement shall be valid and enforceable in accordance with its terms.
6.9 business Day. As used in this Agreement, the term "business day" means any
day other than a Saturday, Sunday or legal or bank holiday in the City of South Miami, Florida (the
"City "). if any time period set forth in this Agreement expires on other than a business day in the
City, such period shall be extended to and through the next succeeding business day in the City.
6.10 Assignment. Neither this Agreement nor any rights under this Agreement
may be assigned by either party.
6.11 Other Documents. The parties shall take all such actions and execute all such
documents which may be necessary to carry out the purposes of this Agreement, whether or not
specifically provided for in this Agreement.
6.12 Governing Law. This Agreement and the interpretation of its terms shall be
governed by the laws of the State of Florida, without application of conflicts of law principles.
6.13 Counterparts. This Agreement may be executed and delivered in three
counterparts, each of which shall be deemed to be an original and both of which, taken together,
shall be deemed to be one agreement.
it
6.14 lndemnifzcation. The City agrees to defend, hold Harmless and indemnify
Employee from any and all claims, suits, causes of action, or proceedings of any kind brought
against the Employee for actions taken by the Employee in the course and scope of his public
purpose employment with the City. Should the City Attorney determine that it is disadvantageous or
a conflict of interest to provide counsel to Employee, Employee will obtain separate counsel of his
choice at the City's expense. In the event that any separate counsel is hired by the Employee under
this provision, the choice of counsel and rates to be charged must be approved by the City
Commission before the City is required to pay for expenses of same. The parties have executed this
Agreement as of the date set forth above.
PASSED AND ADOPTED T141S15 day of 2611.
ATTEST:
clTx CLERK
APPROVED-
A -dR
12
MIAMI DAILY BUSINESS REVIEW
Pubfl3frod Daily %cept Saturday, Sunday and
Legal Holidays
Miami, Miami-Dade County. Florida
STATE OF FLORIDA
COUNTY OF MIAMI -DARE:
Before the undersigned authority personally appeared
V. PEREZ, who on oath says that he or she is the
LEGAL CLERK, Legal Notices of the Miami Daily Business
Review flWa Miami Review, a daily (except Saturday, Sunday
and Legal Holidays) newspaper, published at Miami in Miami -Dade
County, Florida; that the attached copy of advertisement,
being a Legal Advertisement of Notice In the matter of
CITY OF SOUTH MIAMI
PUBLIC HEARING FOR OCTOBER 18, 2011
in the XXXX Court,
was published in said newspaper in the issues of
10/07/2011
Affiant further says that the said Miami Daily Business
Review Is a newspaper published at Miami in said Miami -Dade
County, Florida and that the said newspaper has
heretofore been continuously published in said Miami -Dade County,
Florida, each day (except Saturday, Sunday and Legal Holidays)
and has been entered as second ciass mail matter at the post
office In Miami in said Miami -Dade County, Florida, for a
period of one year next preceding the first publication of the
attached copy of advertisement, and affiant further says that he or
she has neither paid nor promised any person, firm or corporation
any discount, rebate, commission or refund for the purpose
of securing this advertisement for publication in the said
newspaper ..._- _...�_
Sworn to and subscribed before me this
07 day o OCTOBER �') A.D. 2011
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(SEAL)
V. PEREZ personally known to me
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