Res No 203-10-13237RESOLUTION NO. 203 -10 -13237
A Resolution of the Mayor and City Commission of the City of South Miami,
Florida, approving an Employment Agreement between the City of South
Miami and Hector Mirabile, Ph.D., the new City Manager; providing an
effective date.
WHEREAS, pursuant to Article II, Section 7 of the City of South Miami Charter the
Mayor and City Commission is vested with the power to appoint a City Manager; and,
WHEREAS, the City Commission desires to enter into an Employment Agreement with
the City Manager to define the Manager's duties, responsibilities and compensation.
Now therefore be it resolved by the Mayor and City Commission of the City of
South Miami, Florida, that:
Section 1. The City Commission hereby approves the attached Employment
Agreement, between the City of South Miami and Hector Mirabile, Ph.D.
Section 2. This resolution shall take effect immediately upon adoption.
PASSED AND ADOPTED this 21 day of Sept. 2010.
ATTEST:
C �3 �1�r
CITY CLERK
READ AND APPROVED AS TO FORM
AND SUFFICIENCY:
CIT ORNE
.�
COMMISSION VOTE:
4 -1
Mayor Stoddard:
Yea
Vice Mayor Newman:
Yea
Commissioner Palmer:
Nay
Commissioner Beasley:
Yea
Commissioner Harris:
Yea
EMPLOYMENT AGREEMENT
This Employment Agreement ( "Agreement ") is entered into on September 21, 2010,
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, the City is desirous of hiring Employee as its new City Manager; and
WHEREAS, an Agreement is necessary to establish the employment relationship, salary,
benefits, and responsibilities.
AGREEMENT
Now, therefore, for consideration the parties agree as follows:
1. 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 fill 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 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
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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 Meeting 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
The City does not have grounds to terminate Agreement for cause
under Section 4.1 of the Agreement; and
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. Term. Except as otherwise provided in this Agreement, the Term of this
Agreement shall commence on September 21, 2010 and shall terminate at the close of business
on September 20, 2013 (the "Term "); the agreement may be extended by agreement of the
parties for an additional two, one year periods by the commission one year prior to the expiration
of the agreement or a renewal term. This contract ends after five years.
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.
3.2 Fringe Benefits. During the Term, City, at its cost, shall make available to
Employee:
3.2.1 Insurance. The City agrees to pay Employee $680 per month to cover his
health insurance premium for him and his family. This sum shall be subject to an upward or
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downward adjustment depending upon the Manager's then current cost of maintaining his family
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.
3.2.3 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 11 % of base salary per year as a
contribution to Employee's City sponsored retirement plan or any other retirement plan (401x)
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selected by Employee for his benefit. Employee shall be allowed to contribute any amount in
addition to the contribution by the City to the qualified retirement plan (401a) 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 Develoopment. 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 III, Section 3. Removal, of the City of South
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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.
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 jurisdiction of, or pleading
nolo contendre by, Employee of (a) a misdemeanor involving dishonesty, fraud, theft,
misappropriation, embezzlement or the like or (b) a felony.
4.1.6 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.
4.13 A willful violation of the City's Charter.
4.1.8 The death of Employee.
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4.2. Termination for cause dispute procedures. In the event majority of the
Commission elects to terminate Employee for cause pursuant to Section
4.1, Employee may elect to dispute the termination for cause through
mediation.
4.2.1 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.
4.2.2 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.
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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.
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 (30) 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.
4.2.8 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 Agreement, at the
pleasure of the majority of the Commission, without good cause. If the Employee is terminated
without good cause he shall 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.
5. 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
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the parties as follows (or at such other address as a party may specify by notice given pursuant to
this Section):
To City: Philip K. Stoddard, Ph. D.
(or the then current Mayor)
6130 Sunset Drive
South Miami, FL 33143 -5093
With a copy to: Laurence Feingold, Esq.
(or the then current City Attorney)
6130 Sunset Drive
South Miami, FL 33143 -5093
To Employee:
Maria M. Menendez, CMC
(or the then current City Clerk)
6130 Sunset Drive
South Miami, FL 33143 -5093
Hector Mirabile, Ph. D.
18720 SW 7t' Street
Pembroke Pines, FL 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.
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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 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.
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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.
6.14 Indemnification. 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 THIS 21 stday of September 2010.
ATTEST:
APPROVED
mauld
JAY OR
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