Res. No. 207-99-108302
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RESOLUTION NO. 2071 -99 -10830
A RESOLUTION OF THE MAYOR AND CIT`t COMMISSION OF THE CITY
OF SOUTH MIAMI, FLORIDA, APPROVING A CONTRACT BETWEEN
THE CITY OF SOUTH MIAMI AND THE CITY MANAGER, PROVIDING
FOR TERMS AND CONDITIONS AND AN EFFECTIVE DATE
WHEREAS, the City of South Miami has embarked upon a three part process to
professionalize the relationship between the City Commission and the City Manager; and
WHEREAS, the development of a contract with the City Manager is the third step in the
process; and
WHEREAS, the City of South Miami and Charles D. Scurr wish to continue to employ
the services of Charles D. Scurr as City Manager of the City of South Miami; and
WHEREAS, the City and City Manager desire to provide for certain procedures, benefits,
requirements and to set working conditions regarding the employment of the City Manager by
the City.
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF SOUTH MIAMI:
Section 1. The City Commission approves the contract between Charles Scurr as City
Manager and the City of South Miami. A copy of the contract is annexed to this resolution.
Section 2. This resolution shall take effect immediately upon approval.
PASSED AND ADOPTED this 5th day of October ,19'93.
ATTEST:
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READ AND APPROVED AS TO FORM:
City Attorney
Mayor
COMMISSION VOTE:
Mayor Robaina:
Vice Mayor Oliveros:
Commissioner Feliu:
Commissioner Bethel:
Commissioner Russell:
4 -0
Yea
Not present
Yea
Yea
Yea
CITY OF SOUTH MIAMI
INTER- OFFICE MEMORANDM
To: Mayor and City Comm'n.
From: Earl G. Gallop
Date: September 20, 1999
Re: Agenda Item _ 1
City Manager contract
October 5, 1999 Commission
Meeting
Subject: This memorandum presents the attached contract between the City Manager and
the City of South Miami. Entering into an employment is the third step in professionalizing
the relationship between the city manager and the city commission. The first two steps were:
1) selecting a city manager based on professional capability; and 2) increasing salary and
benefits to attract qualified professionals to the city. The third step is to enter into a contract
with the city manager, and to include sufficient incentives in the contract, to retain this highly
qualified professional. I believe that, with this contract, the city will complete the reversal
of its prior history of experiencing high turn -over in this important position, and will
continue the work toward establishing administrative stability in the city.
Contract review: The contract creates an employment between the city manager and the
City of South Miami for an initial term of three years. It provides that the city manager will
devote substantial time to the affairs of the city and allows for limited outside employment
upon prior approval of the commission. The city manager receives the benefits stated in
section 2, including, but not limited to, an indemnification clause that provides for his
defense for any claim arising out of his employment with the city. The indemnification
clause fills a gap left by various indemnification statutes and avoids the possibility that the
city manager might have to fund his own defense until a successful conclusion of the defense
to the claim. Upon termination, the city manager will receive up to, but not exceeding, six -
months worth of compensation and benefits for the unexpired term of the agreement. He
may elect to be constructively terminated if two commissioners make public pronouncements
calling for his resignation. The agreement provides for a due process public hearing within
30 days of being suspended without pay for alleged misconduct. In any litigation, the parties
waive jury trial, preferring to be tried before a judge. The agreement does not create a
property right to employment.
Charter review: The charter provides that the city manager is an "at will' employee of the
city. Art. II, §7.A., city charter (the city manager who shall serve at the pleasure of the
commission). According to judicial opinions, a contract with the city manager does not
change his "at will' employment as long as the commission can terminate the contract for
its convenience. The proposed contract allows the commission to do just that.
The charter also provides that, upon removal without cause, the city manager "shall
receive [his] salary for [30] days" immediately following the adoption of the resolution
terminating his employment. Art. III, §3, city charter. The provision is ambiguous: it is
either an authorization to pay salary, or a limitation on the ability to pay salary for more than
30 days. I cannot determine the intent of the provision from any interpretation of its words.
On one hand, there is no need for authorization in the charter to pay severance benefits (but
the charter contains other provisions that are not necessary). On the other hand, in the
absence of a clear expression of a limitation, such as "shall pay salary for no more than 30
days," the commission can view the provision as an authorization to pay severance and other
benefits for a period exceeding 30 days. Note: The charter review commission viewed this
provision as a limitation and declined to change it. I recommend that the commission revise
this provision at the appropriate time.
Decisions by the city commission: The commission must decide: 1) the appropriate term
of the agreement; 2) salary; and 3) deferred compensation.
Recommendation: Approve a resolution accepting the contract.
cc: Charles D. Scurr, City of South Miami
EMPLOYMENT AGREEMENT
BETWEEN CITY OF SOUTH MIAMI AND
CHARLES D.SCURR
This Agreement, is made and entered into this 5th day of October, 1999, between
the City of South Miami, a Florida municipal corporation, and Charles D. Scurr.
WHEREAS, the City of South Miami and Charles D. Scurr wish to continue to
employ the services of Charles D. Scurr as City Manager of the City of South Miami; and
WHEREAS, the City and City Manager desire to provide for certain procedures,
benefits, requirements and to set working conditions regarding the employment of the
City Manager by the City.
NOW, THEREFORE, in consideration of the promises, mutual covenants,
conditions, provisions and undertakings contained in this Agreement, and for other good
and valuable consideration, the receipt and sufficiency of which is acknowledged by both
parties, the parties covenant and agree with each other as follows:
1. The City Manager shall:
1.1 Duties. Continue to perform the duties of the City Manager of the City of
South Miami in accordance with the terms conditions and provisions
contained in this Agreement, the Charter and Code of Ordinances of the
City of South Miami, and as otherwise lawfully directed by motion or
acclamation of the City Commission.
1.2 Time Required. The City Manager recognizes the position is not and
cannot be an hourly -type employment and the City Manager shall work as
required in order to carry out his duties and responsibilities.
1.3 Outside Employment. The City Manager may engage in outside
employment so long as: 1) prior permission is received from the Mayor
and City Commission upon disclosure of the nature of the employment,
duration and the estimated number of hours per month that will be devoted
to the employment, 2) the employment does not violate the prohibition
against dual office holding and 3) the employment does not create a
potential conflict of interest or detract from the time necessary to
accomplish city work, as determined in the discretion of the City
Commission. The term "Outside Employment" shall not be construed to
mean occasional teaching, publication, pro bono activities or consulting
services performed on time off, not exceeding 5 hours a week unless
approved by the City Commission.
2. The City shall:
2.1 Employment. Continue to employ Charles D. Scurr as City Manager
consistent with the Charter and Code of Ordinances of the City of South
Miami, and as otherwise lawfully directed by motion or acclamation of the
City Commission and the terms and conditions of this Agreement.
2.2 Salary. The amount of Ninety three thousand five hundred dollars
($93,500.00) for the period beginning October 1, 1999, payable in
accordance with the regularly scheduled method of compensation for other
City employees and subject to adjustment in accordance with this
Agreement.
2.3 Annual Adjustment. Annually review the salary of the City Manager as
part of the annual budget annually in accordance with the City Charter.
The City Commission may, in its sole discretion, grant a merit salary
increase and, or, other benefits to the City Manager.
2_4 Cost of Living. COLA as approved by the City for other general
employees.
2_5 Retirement Benefits. Credit in the City retirement system for time
employed in other governmental entities and annual contributions to the
system.
2_6 General Expenses: The City shall pay a monthly expense allowance
equivalent to that provided for the individual members of the City
Commission.
2.7 Professional Dues. Reasonable and customary dues, training and
subscriptions necessary for the City Manager's continued professional
participation, growth and advancement, including national and state
professional organizations.
2.8 Transportation. A car allowance of $500.00 monthly plus a gasoline
allowance of $100.00 monthly, or if requested by the City Manager, a City
car, in which event the City shall be responsible for providing for liability,
property damage and comprehensive insurance and for the purchase,
operation, maintenance, repair and regular replacement of the vehicle.
Entitlement to use of the City vehicle shall cease upon the City Manager's
termination or resignation.
2.9 Insurance /Medical. Pay family coverage health and dental insurance
under the city plans, long term disability insurance, and life insurance in
an amount equal to annual salary, and an annual physical.
2.10Leave. Equivalent to other City employees at senior seniority levels as
provided in the City personnel regulations.
2.11 Deferred Compensation. An annual amount equal to 11% of the City
Manager's annual salary , into the Plan on the City Manager's behalf, and
agree to transfer ownership to the City Manager of the Plan's fund upon
the City Manager's resignation or termination.
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2.12Equipment. Provide the equipment necessary to perform the duties of City
Manager such as cell phone, pager and radio.
2.13 Indemnification and Defense of Claims. The City shall defend, save
harmless and indemnify the City Manager against any tort, professional
liability claim or demand or any and all other legal action arising out of an
alleged act or omission occurring in the performance of the City
Manager's duties. The City will litigate, compromise or settle any such
claim or suit and pay the amount of any settlement or judgement rendered
thereon. The City, or its insurance carrier, will provide legal
representation for the City Manager, suitable to the City Manager, for any
and all claims, proceedings or lawsuits related to or arising out of the City
Manager's affiliation with the City. This indemnification provision shall
survive the termination of this Agreement.
2.1413onds. Pay for any cost of bonds required pursuant to law, ordinance or
Charter.
3. Termination. The City Manager shall serve at the pleasure of the City
Commission as defined by the City Charter. Nothing in this Agreement shall
prevent, limit or otherwise interfere with the absolute right of a majority of the
full City Commission to terminate the services of the City Manager at any
time, with or without cause, and without prior notice, in accordance with
Article III, Section 3 of the City's Charter, subject only to the provisions set
forth in Section 4 of this Agreement. In the event the City Manager voluntarily
resigns his position with the City, then the City Manager shall give the City
Commission 60 -days written notice, in advance, unless the parties agree to
waive such notice requirement. Termination for cause shall mean termination
for the same grounds as would result in the forfeiture of office by a
Commissioner under Article 1I, Section 4.A. of the City Charter.
4. Severance Terms and Conditions. Severance pay, as authorized by the Charter,
shall not be payable in the event of a voluntary resignation or termination for
cause. In the event the City Manager is terminated without cause by a majority
of the full City Commission, or the City Manager resigns following a
suggestion made in writing or at a public meeting or workshop by any two
members of the Commission that he resign, or the City Commission suspends
the City Manager without cause for more than 90 days, in which events the
City Manager may at his option be deemed terminated without cause, the City
shall pay the City Manager an amount equal 30 -days of the City Manager's
salary and accrued benefits. Any payments due to the City Manager for
severance, accrued leave or other obligations shall be paid in cash in full within
30 days of resignation or termination.
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5. Suspension. The City Commission may suspend the City Manager with full
pay and benefits at any time during the term of this Agreement. The
Commission may suspend the City Manager without pay and further benefits,
but only for cause as described in Section 3 and upon giving the City Manager
at least 30 -days written notice of the charges to be heard at a public hearing on
the charges.
6. Term. The term of this Agreement shall be a three (3) year term commencing
October 1, 1999 and ending September 30, 2002.
7. Contract Payment. In the event the City Manager is terminated without cause
or the City Manager resigns as provided in paragraph 4, the City shall
additionally pay the City Manager the balance of payments and benefits
provided for under this contract up to a maximum of six months plus one
additional month for each year of service.
8. Amendment. The provisions of this Agreement constitute the entire
understanding between the parties. Only the representations and understanding
contained herein shall be binding upon the City Commission and the City
Manager. No other representations or understanding are binding on the City
Commission and the City Manager unless contained in this or a subsequent
duly adopted Agreement. No modification, amendment or alteration in the
terms and conditions of this Agreement shall be effective unless approved in
writing by both parties.
9. Severability. In the event any provision of this Agreement is declared by a
court of competent jurisdiction to be invalid, the declaration shall not affect the
validity of the Agreement as a whole, or any part of the Agreement, other than
the part declared to be invalid.
10. No Property Right to Employment. The contract for employment does not
change the nature of the employment from at will employment nor create a
property right to employment under the laws of the State of Florida.
11. No Waiver. The waiver by either party of a breach of any provision of this
Agreement by the other shall not operate or be construed as a waiver of any
subsequent breach by that party.
12. Obligations Personal. The rights and obligations herein granted are personal in
nature and cannot be transferred by the City Manager.
13. Reduction of Compensation. In the event the City Commission at any time
during the employment of the City Manager, reduces the annual financial
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benefits of the City Manager in a greater percentage than an applicable across -
the -board reduction for all City employees, or in the event the Commission
refuses, following written notice, to comply with any other provision
benefiting the City Manager, then in that event the City Manager may at his
option, be deemed to be terminated within the terms outlined in Section 3 and
4 above, at the date of the reduction or the refusal, and the severance pay
provision and other termination provisions shall become applicable at the
annual salary and benefit level in effect prior to the reduction or refusal.
14. Florida Law. This Agreement shall be governed by Florida law and any
litigation which may arise under, or relating to this Agreement shall be filed
and litigated in the state circuit court in Miami -Dade County, Florida.
Litigation shall not be initiated in any federal district court, nor shall any party
assert in any proceeding that this employment contract creates a federally
protected property right in employment.
15. Waiver of Right to Jury Trial. The parties knowingly waive their right to a
jury trial in any legal action arising under, or relating to, this Agreement.
16. Effective Date. This Agreement shall become effective on the date of approval
by resolution of the City Commission.
IN WITNESS WHEREOF, the City of South Miami has caused this Agreement to
be signed and executed on its behalf by its Mayor and duly attested by its City Clerk, and
Charles D. Scurr has signed and executed this Agreement the day and year first above
written.
Attest:
.i
City Clerk
Approved as to for and
Legal sufficiency:
City Attorney
City of South Miami
By _Q e '
Julio Robaina, Mayor
City Manager
Charles D. Scurf
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