Res No 223-10-13257RESOLUTION NO.
223 -10 -13257
A Resolution of the Mayor and City Commission of the City of South Miami,
Florida, relating to the position of Chief of Police; and relating to Contracts;
authorizing the execution of a contract between the City of South Miami and
Orlando Martinez de Castro; providing an effective date.
WHEREAS, pursuant to Article III, Section 5 of the City of South Miami Charter the
City Manager is vested with the power to appoint a Chief of Police; and,
WHEREAS, the City Manager has exercised that power and appointed Orlando Martinez
de Castro as Chief of Police subject to the entering into a contract of employment: and
WHEREAS, the Mayor and City Commission authorized the City Attorney to enter into
negotiations with Orlando Martinez de Castro, as the proposed Chief of Police to prepare a draft
employment agreement; and,
WHEREAS, the City of South Miami wish to employ the services of Orlando Martinez
de Castro as Chief of Police of the City of South Miami by executing the attached contract.
NOW THEREFORE BE IT RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA: THAT
Section 1. The above whereas clauses are incorporated by reference into the body of
this resolution.
Section 2. The terms of the contract between the City of South Miami and Orlando
Martinez de Castro shall be as provided for in the attached exhibit A and incorporated into this
resolution as fully set forth herein, and which agreement shall be executed by the City Manager
on behalf of the City.
Section 3. The Chief of Police will meet individually with the City Manager on an
annual basis to discuss his performance.
Section 4. This resolution shall take effect immediately upon approval.
PASSED AND ADOPTED this Rth day of Octzober2010.
ATTEST: APPROVED:
Y CLERK MAYOR
Pagel of 2
Res. no. 223 -10 -13257
READ AND PPROVED AS TO FORM
AND SU C NCY:
r
CITY ATTORNEY
Page 2 of 2
COMMISSION VOTE:
4 -1
Mayor Stoddard:
Yea
Vice Mayor Newman:
Yea
Commissioner Beasley
Yea
Commissioner Palmer:
Nay
Commissioner Harris:
Yea
EMPLOYMENT AGREEMENT
Employment Agreement ( "Agreement ") dated as of the 8th day of October, 2010,
between the City of South Miami, a municipal corporation ( "City ") and Orlando G. Martinez de
Castro ( "Employee "), collectively referred to as the Parties ( "Parties ").
BACKGROUND
WHEREAS, the City is desirous of hiring a Chief of Police; and
WHEREAS, the Employee is experienced and qualified to assume the duties of the police
chief for the City; and
WHEREAS, the City wishes to retain the services of the Employee as the Chief of Police,
subject to terms and conditions of this Agreement.
AGREEMENT
NOW, THEREFORE, FOR Ten Dollars, the mutual covenants and conditions of this
Agreement, and other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties agree as follows:
1. Employment.
1.1 City agrees to employ Employee as Police Chief to perform the duties and
exercise powers as provided by State law, the City Charter and to perform such other legally
permissible and proper duties and functions consistent with the Employee's position as Chief of
Police as may be assigned by the City Manager from time to time.
1.2 Employee shall report to the City Manager. Employee hereby accepts
such employment. During the Term of Employee's employment by City, Employee shall
(a) devote substantially all of his 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
(009931.000 I/M 1889250_7)
pursued for profit or advantage; provided, however, that Employee may engage in personal
and /or passive investment and charitable activities and continue to operate Employee's security
consulting business (OMC Consultants, Inc., a Florida corporation), 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. All
non City related work will be done under the Employee's personal time and will not use any City
asset during that time. The City shall not be held responsible or liable for any and all action
taken by Employee during his activities for OMC Consultants, Inc. or other personal
engagements out of the scope of his employment.
1.3 Additional Duties. Employee may assume the duties of Code
Enforcement at the discretion of the City Manager, but shall not assume other duties and
obligations as to other City functions and departments (including, but not limited to managing
the general parking enforcement or information technology operations of the City), except to the
extent the parties mutually agree in writing to make such additional duties part of Employee's
obligations and further agree on additional compensation to be paid to Employee for performing
those additional duties.
2. Term. Except as otherwise provided in this Agreement, the Term of this
Agreement shall be for five (5) years commencing on the 20th day of October, 2010 and shall
terminate at the close of business on the 19th day of October, 2015 (the "Term "); provided that
any extension beyond the 19t1i day of October, 2015, shall require the approval of both City and
Employee.
3. Compensation. During the course of Employee's employment by City, pursuant
to this Agreement:
{009931.0001/M1889250_7)
2
3.1 Annual Salarv. Employee shall be paid an annual salary of $100,000.00,
which shall be payable in equal installments in accordance with the City's compensation
practices and thereafter be subject to a performance based increase, calculated from the base
salary, of up to a maximum of 5% in earnings based on an annual performance evaluation as
described in the City's Personnel Manual. The City shall annually contribute $20,000.00, in
equal payroll period installments, to a City approved ICMA 401a or 457b plan. If the City
requires Employee to enter the City's Pension Plan the Employee shall be paid an annual salary
of $107,000.00 and thereafter may be subject to a performance based increase, calculated from
the base salary, of up to a maximum of 5% in earnings based on an annual performance
evaluation as described in the City's Personnel Manual. If City establishes another pay period
for its employees, which is no less frequent than semi- inonthly, Employee shall be paid in
accordance with that schedule.
Employee:
3.2 Fringe Benefits. During the Term, City, at its cost, shall make available to
3.2.1 Insurance. The City shall provide Employee and his dependents, if
applicable, with insurance benefits including disability, medical, dental, and life insurance of the
same type and coverage as provided to senior managers of the City. Employee's dependents
shall be covered only if the City insurance plan covers dependents for employees with the City.
If dependents are covered at Employee's cost, the Employee shall determine if he needs such
coverage.
3.2.2 Automobile. In lieu of a vehicle allowance or a mileage
reimbursement for use of Employee's personal vehicle for City business, the City shall assign to
Employee and for his use the newest unmarked motor vehicle of the same make as the City
f00993 1.000 1 /M 1889250_7}
3
purchases for the police fleet maintained at the City's expense, and which is owned or leased by
the City, so as to assist the Employee in performing services for the City as Police Chief. The
vehicle shall be replaced, if the City purchases a new police vehicle, by a like kind new vehicle
every 24 months during the Term. The make of the vehicle shall be the standard police vehicle
of the City. Employee may utilize the vehicle at any time (24 hours per day 7 days per week) in
connection with providing services to the City, including official travel for the City and any
personal use that occurs during Employee's portal to portal travel from home to the City, or any
work related assignment, and back to his home.
City shall include the vehicle on the schedule of vehicles for which the City maintains
automobile casualty and liability insurance coverage and pay for such 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. Employee shall be
responsible for any employee payroll taxes upon this vehicle allowance benefit in accordance
with applicable law.
3.2.3 Vacation, Sick Leave, Holidays Clothing Allowance, etc.
(a) Commencing with the execution of this Agreement,
Employee shall immediately receive vacation benefits equivalent to that received by employees
with the City based on the years of service by Employee to the City, which shall include all prior
employment by Employee with the City. The Employee shall regain the sick time accumulated
but unused when the Employee's prior employment with the City was terminated in 2006 which
the Parties hereto agree is 380.00 hours.
f009931.0001/MI889250_7}
4
(b) Employee shall receive one (1) day per month of sick time
or such additional sick time, if greater, as is provided to City's employees.. The sick time may
be accrued and rolled over to a later date and shall otherwise be consistent with City policies for
senior management.
as employees of the City.
(c) Employee shall be entitled to holidays in the same manner
(d) Employee shall receive a clothing allowance equivalent to
that provided to a police investigator under the police union contract with City and shall be
payable as required by the police union contract with the City. This allowance shall be provided
only for actual clothing expenses incurred in the course and scope of Employee's work and
payments shall be made to Employee by City only upon presentation of receipts for payments for
clothing expenses incurred in connection with Employee's work. All such payments to be made
within thirty (30) days upon presentation of such receipts.
(e) The Employee understands that current City Ordinance
governing Pension requires him to become part of the City's Pension plan; Should the City
modify its Pension ordinance to allow Employee to opt out and join an ICMA 401a or 457b
defined contribution plan, then the City shall contribute Twenty Thousand and No /100 Dollars
($20,000.00) per year or such higher amount, if any, as it contributes to the pension of senior
management at the City, whichever is greater, in addition to Employee's salary, as a contribution
to Employee's City- sponsored retirement plan or any other retirement plan (IRA, 401k, etc.)
selected by Employee for his benefit.
1009931.0001/M 1889250_7}
5
3.2.4 The City shall Provide Employee, at City's cost, with equipment
necessary to fulfill Employee's duties, including but not limited to uniforms, cell phone
allowance of $90.00, a computer, and other necessary communication equipment. .
3.3 menses. City shall pay for or reimburse Employee for all City approved
ordinary, necessary, and reasonable business expenses incurred or paid by the 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.
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 law
enforcement associations and organizations necessary and desirable for his continued
professional participation, growth and advancement, and for the good of the City, subject to
budgetary approval. City shall pay for all City approved continuing education for Employee.
The City shall further provide Employee all eligible State of Florida educational incentives.
4. Termination.
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 Employer made reasonably and in good faith
that Employee has breached this Agreement in any material respect, confirmed by an arbitrator
in accordance with process set forth in this Section 4.1.
(009931.0001/M 1889250_7)
6
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 Excessive alcohol or drug usage by Employee to an extent that it
interferes with the performance of Employee's duties under this Agreement.
4.1.4 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.
4.1.5 The death of Employee. Upon his death the Employee shall be
entitled to all severance payment allowance under the City policies upon the death of an
Employee (one year salary at this time).
City shall provide written notice of a termination ( "Termination Notice ") for Cause and,
with respect to termination pursuant to Sections 4.1.1 - 4.1.4, shall give Employee an opportunity
to cure or disprove the grounds for termination by submitting the issue to non - binding mediation
( "Mediation ") which unless the parties agree otherwise, shall be administered by the American
Arbitration Association in accordance with their Mediation Procedures in effect at time of the
dispute. The Termination Notice shall include a request for mediation to be filed with the person
or entity administering the mediation and the cost of mediation shall be equally split by the
parties. The parties shall cooperate so as to complete the Mediation in not more than forty -five
(45) days from the time the mediation is filed with the selected mediator. In the event that the
parties cannot resolve their differences during the Mediation they agree to submit the dispute to
binding arbitration ( "Arbitration ") before the American Arbitration Association and in
accordance with said Association's rules then in effect. The arbitrator to be chosen shall be
(009931.0001 N 18892507)
7
someone with knowledge of police administration and work, if at all possible, and shall apply
national performance criteria for comparable cities including size, population and departmental
budgets, in order to evaluate Employee's performance of its obligations under this Agreement.
The Parties agree that Opa Locka, North Miami, North Miami Beach and Homestead are
comparable cities for the purpose of evaluating changes in crime statistics over time. The
decision and /or award rendered by the arbitrator shall be final, and judgment may be entered
upon it in accordance with applicable law in any court having jurisdiction. Initially, in order to
commence the arbitration, the cost of the arbitrator and arbitration shall be split equally between
the parties, however, the prevailing party in the arbitration proceeding shall be entitled to
reimbursement for all costs and expenses, including attorneys' fees and the cost of the
Arbitration. Employee shall receive all compensation and benefits as set forth in Section 3 of
this Agreement until final termination after conclusion of the Mediation and Arbitration process
set forth herein. In the event Employee is terminated pursuant to this Section 4.1 and after the
mediation and arbitration process set forth above, confirms the City's right to terminate this
Agreement, Employee shall be entitled to receive only such compensation and benefits thereafter
(including, without limitation, annual salary and other benefits which Employee has 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. If the arbitration
process confirms that Employee did not breach the Agreement, the Agreement shall remain
binding on the Parties hereto.
4.2 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;
1009931.0001/M 1889250_7)
8
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.
4.3 Termination Other Than by Voluntary Resignation or For Cause.
Employee shall have the right to terminate the Agreement upon a breach of the Agreement by the
City and shall further be entitled to all rights and remedies under Florida law, in the event of a
breach of the Agreement by City. The Employee shall provide City with written notice of any
breach of the Agreement by City. Upon issuance of said notice, the issue shall be submitted for
Mediation and, if necessary, Arbitration in accordance with the process outlined in section 4.1
for a termination by the City. All costs, expenses and attorneys' fees shall be assessed or paid as
stated in Section 4.1.
Upon a final determination by the arbitrator that the City has breached the Agreement or
if City terminates Employee for any reason other than for Cause, Employee shall be entitled to
receive the following: (i) the annual salary due and payable to Employee through the balance of
the Term of this Agreement paid in Employee's sole discretion either in a lump -sum or on a bi-
weekly basis; and (ii) continued benefits as set forth in Section 3 of this Agreement (or City can
make payments therefore, as applicable) through the balance of the Term of this Agreement.
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.
(009931.0001/M1889250_7)
9
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:
With a copy to:
Hector Mirabile, Ph. D.
City Manager
6130 Sunset Drive
South Miami, Florida 33143 -5093
Laurence Feingold, Esq.
6130 Sunset Drive
South Miami, FL 33143 -5093
Maria Menendez
6130 Sunset Drive
South Miami, FL 33143 -5093
To Employee: Orlando G. Martinez de Castro
3636 NW 36 Street
Miami, Florida 33142
With a copy to: Adorno & Yoss LLP
2525 Ponce de Leon Boulevard
Suite 400
Coral Gables, Florida 33134
Attention: Alfredo L. Gonzalez, Esq.
Fax: (305) 460 -1422
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
{009931.0001 /M 1889250_7 }
10
between and representations made by the parties to each other and supersede any and all other
prior 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, successors and permitted assigns.
6.5 Waiver. Waiver by either party of any breach of any provision of this
Agreement 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 Captions. The captions contained in this Agreement are inserted only as a
matter of convenience or reference and in no way define, limit, extend or describe the scope of
this Agreement or the intent of any of its provisions.
6.7 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.
6.8 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.
(009931.0001/M1889250_7)
6.9 Severabilitv. 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.
6.10 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 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.
6.11 Assignment Neither this Agreement nor any rights under this Agreement
may be assigned by either party without the written consent of the other party.
6.12 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.
6.13 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.
6.14 Counterparts. This Agreement may be executed and delivered in two
counterparts, each of which shall be deemed to be an original and both of which, taken together,
shall be deemed to be one agreement.
6.15 Litigation/Arbitration, The parties have selected arbitration for binding
dispute resolution under this Agreement. Any claims subject to, but not resolved by, mediation
shall be subject to arbitration, unless mutually agreed in writing by the parties and shall be
administered by the American Arbitration Association by an arbitrator, if at all possible, with
experience in police work and administration. Initially and in order to commence the process,
{009931.0001/M 1889250 7}
12
the parties shall split the cost of the arbitration proceedings. However, the prevailing party in
regards to the dispute, shall be entitled to all costs and expenses including attorneys' fees and
cost of arbitration proceedings initially shared by the parties.
6.16 Chapter 112. Nothing in this Agreement shall diminish Employee's rights
under Florida Statute, Chapter 112, as it relates to law enforcement officers.
6.17 Indemnification. The City agrees to defend, hold harmless and indemnify
Employee from any and all liability, fines, damages, attorneys fees, costs, expenses and all
claims, suits, causes of action, or proceedings of any kind including payments in settlement
brought against the Employee for actions taken by the Employee in the course and scope of his
employment with the City. Should the City 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, which approval shall not be
unreasonably withheld.
The parties have executed this Agreement as of the date set forth above.
THE CITY /OFSOUTH MIAMI
Title: ff7liai& C-6
{009931.0001/M 1889250_7}
13
MIAMI DAILY BUSINESS REVIEW
Published Daily except Saturday, Sunday and
Legal Holidays
Miami, Miami -Dade County, Florida
STATE OF FLORIDA
COUNTY OF MIAMI -DADE:
Before the undersigned authority personally appeared
eavey
O.V. FERBEYRE, who on oath says that he or she is the
VICE PRESIDENT, Legal Notices of the Miami Daily Business
Review f /k/a 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,
n, OZ?' p'
ca atn
being a Legal Advertisement of Notice In the matter of
-
WOTI,CE OF,P,UBLICHEARING' ' '
., :- CITY OF,SOUTH M1�1M1 -;
CITY OF SOUTH MIAMI
PUBLIC HEARING - OCT. 8, 2010
NOTICE IS HEREBN given thatthb City Commission of the City of South`
Miami; FloridawIII con duct a Public Hearing ataSpacial City Commissiorr
in the XXXX Court,
meeting scheduled for Fnday, Octbber.8; 2010 beginning at 6:00 p;m: in
Chambers:> 6130 Sgnset Drive, to consider the
was published in said newspaper in the issues of
the City,Qdmmissign
�.. -
following item(s):
09128/2010
t`.
Affiant further says that the said Miami Daily Business Io:wuuaua, «�� s - -
Review is a newspaper published at Miami in said Miami -Dade of South Miami 'and Orlando. Martinez de Castro prowdirg an effec -:
County, Florida and that the said newspaper has tiYe date •`
4
heretofore been continuously published in said Miami -Dade County, ,ALL interested parties are invited to attend and will be heard: '
Florida, each day (except Saturday, Sunday and Legal Holidays) q"
and has been entered as second class mail matter at the post For further information please contact,tha ,City Manager's Office at:!
office In Miami in said Miami -Dade County, Florida, fora 305 66 &2510.,,
period of one year next preceding the first publication of the '-
attached copy of advertisement; and affiant further says that he or are M. Menendez, GMC
she has neither paid nor promised any person, firm or corporation ,City Clerk,
r fund for the purpose
siorp re
any discount, rebate, commis p p
of securing w adverti a for publication in the said Pursuant to Florida Statutes�288:0105, the City herebyaHvises the public
newspap
that ,if a person decides to appeal any decision, made, by ahls Board,
Agency or,Commission with respect to.any `matter considered at. its
meeting or hearing, he or ehe will need a .reoerd of the proceedings; and
thaI cord of the proceedings is made'which record inelt�des the testimony
an: upon which the appeal late be based. lo-0-260/1571381K
Sworn to and subscribed before me this 9 /2g
28 If of SEPTEMBEf ,A.D. 2010
(SEAL)
O.V. FERBEYRE personally known to me
B. THOMAS
•. �F = Commission # DD 937532
Expires November 2, 2013
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