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CITY OF SOUTH MIAMI
INTER - OFFICE MEMORANDUM
/D
To: Mayor and City Comm'n. Date: February 11, 2009
From: Luis Figueredo Re: City Manager contract
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Subject: This memorandum explains the proposed amendment to the contract between the
City Manager and the City of South Miami. At the time the employment agreement was
amended and approved by the City. Commission subsection 4.3 was modified in a manner
that rendered the final sentence meaningless. Subsection 4.3 provides for annual performance
reviews of the city manager. The last sentence originally provided that in the event the city
manager did not receive a performance review 60 days prior to his anniversary date he would
receive an automatic merit increase in the maximum amount established under the contract.
The maximum merit increase amount established in the contract is seven percent (7 %).
During the Commission's consideration of this matter a motion passed to modify the
automatic increase to the minimum merit increase amount established under the contract.
The contract does not establish a minimum merit increase. The provision is therefore
rendered meaningless. The Commission by acclimation has directed that the minimum merit
increase be established at zero. In light of the foregoing, my recommendation is that the final
sentence that addresses merit increases be eliminated from the contract. The attached contract
depicts the language in strike through format that I am recommending be deleted from the
contract.
Recommendation: Approve a resolution accepting proposed amendment to the contract.
cc: W. Ajibola Balogun, City of South Miami
I RESOLUTION NO.
2
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4 A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF
5 THE CITY OF SOUTH MIAMI, FLORIDA, RELATING TO THE
6 CITY MANAGER'S CONTRACT; AUTHORIZING THE
7 EXECUTION OF AN AMENDMENT TO THE CONTRACT
8 BETWEEN THE CITY OF SOUTH MIAMI AND W. AJIBOLA
9 BALOGUN; PROVIDING AN EFFECTIVE DATE.
10
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12 WHEREAS, On June 3rd, 2008 the Mayor and City Commission approved by
13 Resolution No. 81 -08 -12678 the employment agreement between W. Ajibola Balogun
14 and the City of South Miami; and,
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16 WHEREAS, Subsection 4.3 of the executed employment agreement provides that
17 in the event the city manager does not receive a performance review 60 days prior to his
18 anniversary date that he would receive an automatic merit increase in the minimum
19 amount established under the contract; and,
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21 WHEREAS, The employment contract does not establish a minimum merit
22 increase, thus rendering the sentence meaningless.
23
24 WHEREAS, the City of South Miami and W. Abjibola Balogun wish to amend the
25 employment contract by deleting the reference in the contract that provides for an
26 automatic merit increase if the commission does not provide the city manager with a
27 performance review 60 days prior to his anniversary date.
28 .
29 NOW THEREFORE BE IT RESOLVED BY THE MAYOR AND CITY
30 COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA;
31
32 Section 1. The above whereas clauses are incorporated by reference into the
33 body of this resolution.
34
35 Section 2. The proposed amendment to the contract between the City of South
36 Miami and W. Ajibola Balogun is approved..,
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Section 4. This resolution shall take effect immediately upon approval.
PASSED AND ADOPTED this -th day of February, 2009.
ATTEST:
CITY CLERK
READ AND APPROVED AS TO FORM
Luis R. Figueredo,
Nagin Gallop & Figueredo, P.A.
Office of City Attorney
APPROVED:
MAYOR
COMMISSION VOTE:
Mayor Feliu:
Vice Mayor Beasley:
Commissioner Newman:
Commissioner Beckman:
Commissioner Palmer:
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ADDENDUM TO EMPLOYMENT AGREEMENT
This Addendum To Employment Agreement ( "Addendum ") is made this
day of February, 2009, between City of South Miami (hereinafter, "City ") and W.
Ajibola Balogun (hereinafter, "City Manager ").
WHEREAS the City and City Manager previously entered into an Employment
Agreement on June 3rd, 2008;
WHEREAS subsection 4.3 of the executed employment agreement does not
establish a minimum merit increase and the last section that provides that in the event the
city manager does not receive a performance review 60 days prior to his anniversary date
that he would receive an automatic merit increase in the minimum amount established
under the contract is therefore meaningless; and,
WHEREAS the parties wish to amend the Employment Agreement to delete the
last sentence of subsection 4.3.
NOW THEREFORE, in consideration of the promises and mutual covenants set
forth, the parties do agree to amend the Employment Agreement as follows:
1. Subsection 4.3 of the Employment Agreement is amended to read as follows:
The Commission shall review the performance of the City Manager annually, not
later than 60 days before the anniversary date established in this Agreement, and in
accordance with established criteria for the annual performance reviews for the
City Manager.
2. There are no additional changes to the employment contract. The remainder of the
original agreement is in full force and effect.
IN WITNESS WHEREOF, this Amendment to the Employment Agreement has
been executed and delivered by a duly authorized officer of the City of South Miami and
by the City Manager Employee on the date first above written.
ATTEST:
Maria Menendez, City Clerk W. Ajibola Balogun, City Manager
15150 SW 166th Street,
Miami, Florida 33187
APPROVED AS TO FORM:
WITNESSESS:
Luis R. Figueredo, City Attorney
WAMy Documents\Doc\ADDENDUM TO EMPLOYMENT AGREEMENT.balogun.doc
EMPLOYMENT AGREEMENT
BETWEEN
CITY OF SOUTH MIAMI
AND
W. AJIBOLA BALOGUN
This Agreement is made and entered into this day of J(Ar1'e. , 2008, by and
between the City of South Miami (hereinafter, "City ") and W. Ajibola Balogun (hereinafter,
"City Manager "), which hereafter may be individually referred to as a "Party" or be collectively
referred to as "Parties ".
In consideration of the promises, mutual covenants, conditions, provisions and
undertakings contained in this Agreement, and for other good and valuable consideration, and
receipt and sufficiency of which is hereby acknowledged by both Parties, the Parties covenant
and agree with each other as follows:
1. APPOINTMENT AS CITY MANAGER
The City, pursuant to art. III, sec 1 of the City Charter and acting through its Mayor and City
Commission ( "Commission "), have by City Resolution 271, ® 6 —124;-79 elected to employ
W. Ajibola Balogun as its City Manager.
Mr. Balogun, upon approval of the terms of this Agreement by the Commission, agrees to
serve as the City Manager of the City of South Miami in accordance with the terms and
conditions of this Agreement.
2. TERMS OF EMPLOYMENT
The City Manager, pursuant to art. II, sec 7A of the City Charter, serves at the pleasure of the
Commission, which is empowered to terminate the services of the City Manager at any time in
accordance with the provision of this Agreement.
This Agreement shall continue for a fixed term of sixty (60) months, beginning March 24,
2008.
Except as otherwise provided in this agreement, City Manager shall remain the exclusive
employee of the City. However, the City Manager may devote his personal time and interest to
matters relating to public service such as community service, teaching, writing, speaking
engagements, pro bono services and other professional endeavors provided they are performed
during the City Manager's off -duty time. In the event any such activities require that the City
Manager engage in non -city related activity during his scheduled working hours, the City
manager shall disclose the nature of the endeavor, its duration, estimated time requirements and
schedule commitments to the City Commission and receive the approval of the City Commission
prior to participating in the activity. Furthermore, the City Manager, prior to engaging in such
endeavors, shall ensure that such endeavors:
(i) do not violate the prohibition against dual office holdings;
(ii) do not create reality or appearance of conflict of interest; and
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(iii) do not materially detract from the time or schedule to accomplish the
City Manager's duties, or objectives.
This Employment Agreement neither alters the nature of the employment from an "at- will"
employment nor creates a property right to employment under the laws of the State of Florida.
3. DUTIES AND RESPONSIBILITIES OF THE CITY MANAGER
The City Manager, as the Chief Administrative Officer of the City, shall be responsible for
the administration of all City affairs, for carrying out policies adopted by the Commission, and
for implementing the City budget and programs as directed by the Commission.
The City Manager shall report and be accountable only to the Commission.
The City Manager shall perform those duties prescribed by art. III, sec. 5 and other relevant
provisions of the City Charter; prescribed by law or inter -local agreement, and as directed by the
Commission.
The City Manger shall be solely responsible for hiring and terminating City employees,
subject to limitations imposed by budget authorizations, funding availability or policy direction
by the Commission.
The City Manager shall devote his time and interest to the city's affairs at whatever time of
day or day of week reasonably required or scheduled by the City Manager, subject to a minimum
average of forty (40) hours per week.
The City Manager shall report to the City Attorney any alleged violation of Federal, State or
City laws, codes, ordinances as well as any violations of any terms of this contract.
The City Manager warrants that:
(i) He does not now have, and that he will not knowingly enter into any
contract or relationship with another person or entity that creates a
conflict or interest, as the term is described in se. 2 -11.1 of the code of
Miami -Dade County and the city's conflict of Interest and Ethics Codes,
(ii) He has not paid or agreed to pay any person any consideration for the
procurement of this Agreement.
(iii) He will uphold the State, County and City ethics does and the Florida
Public Meeting and Public Records laws (Sunshine Laws), and
(iv) In the event he has any concerns or reservations about any pending
actions as they may relate to the above topics, he will seek legal advice
from the City Attorney and/or direction from the Commission.
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4. DUTIES AND RESPONSIBILITIES OF THE CITY
4.1 To the extent practical, the Commission members shall address their concerns
regarding the financial condition, operations, personal and other City matters directly
to the City Manager, who shall address those matters with the pertinent City staff,
consultants, contractors and advisors for response to the Commission
4.2 No Commission member, acting alone and without authorization of the Commission,
shall direct the City Manager to enter into or terminate any contract or to employ any
person or, to grant or withhold funds to any person, or to instruct any person under
the City Manager's authority to take or refrain from taking any specific action. This
paragraph shall not be applied to limit the non - interference provisions of art. VI, sec
7 of the City Charter.
4.3 The Commission shall review the performance of the City Manager annually, not
later than 60 days before the anniversary date established in this Agreement, and in
accordance with established criteria for the annual performance reviews for the City
Manager. Merit increase of a minimum established in the Agreement shall be
automatically awarded to the City Manager on the 591h day before the anniversary
date, if Commission fails to perform or complete performance review for the
Manager.
4.4 The Commission shall consider such factors as job performance, experience, and
length of employment, satisfaction of objectives, responsiveness or other factors as
the commission may deem to be important. in determining the annual merit salary
increase.
4.5 The Commission, for unforeseen fiscal adversity, may elect to either temporarily or
permanently reduce the salary and/or benefit payments of City employees. In the
event the Commission reduces the salary or other benefits of the City Manager in an
a greater percentage then an equivalent "across- the - board" reduction of salary or
benefits of all full -time City employees, or in the event the City refuses to comply
with any other substantive provisions of this Agreement, the City, upon notification
by the City Manager within fifteen (15) days of such action, shall have forty -five (45)
days from such notice within which to cure the violation. If the violation continues
beyond the cure period it shall considered a constructive termination "for
convenience ", in which case the associated severance provisions, as described
herein; shall be effective as of the day the violation occurred and pursuant to the
salary, benefits or other conditions in effect immediately before the violation.
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5. SALARY AND BENEFITS
5.1 Salary
5.1.1 The City Manager shall initially receive an annual base salary of
$165,000.00 commencing from the date of appointment as City Manager
and paid in the same frequency and proportion as that of other salaried
City employees and subject to the same legally required deductions. The
City Manager shall to be considered for a maximum of seven percent
(7 %) merit increase effective on his anniversary date.
5.1.2 For no additional compensation, the City Manager shall continue to serve
as Public Works Director until September 30, 2008.
5.1.3 The City Manager shall be entitled to and receive the same annual cost
of- living adjustment (COLA) as may be granted to other City
administrative employees. The City Manger's role, if any, in
negotiating such and adjustment with recognized collective bargaining
organization shall not be considered a conflict of interest.
5.2 Benefits
5.2.1. The City Manager shall accrue the equivalent of 1.5 days of "vacation
time" and 1.0 days of "sick time" per month. The City Manager may
accumulate unused vacation time. In addition, the City Manager shall
receive personal days in the same fashion city employees accrue personal
days.
5.2.2. The City Manager shall be entitled to all paid holidays customarily
granted to all City employees.
5.2.3. All comprehensive medical, dental, vision, disability and other health
and wellness insurance options shall be available to the City Manager
and his family at no cost to the City Manager. The City shall also
provide the City Manager, at the City's expense, a comprehensive annual
physical examination, supplemental life insurance and life insurance
coverage in an amount equal to the City Manager's annual base salary.
5.2.4. The City shall contribute to a deferred compensation plan selected by the
City Manager in an amount equal to eighteen percent (18 %) of the City
Manager's annual base salary. Such contributions shall occur on a pro-
rated basis per City pay period.
5.2.5. The City shall provide the City Manager with a monthly expense
allowance equal to the allowance provided to a member of the city
Commission.
5.2.6. Because of the nature of the City Manager's duties and responsibilities,
the City Manager will require the use of a take —home automobile. The
take home vehicle may be utilized for personal use. In the event the
Commission elects to replace the automobile currently used by the City
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Manager, any replacement automobile will be a similar model.
Accordingly, the City Manager may, at his option, use his own motor
vehicle or continue to use the automobile provided to him by the City. If
the City Manager elects to use a city provided automobile, the City shall
be responsible for any pay of its purchase and all expenses related to its
operation, maintenance, repair, fuel and replacement. The City shall also
pay for all liability, property comprehensive uninsured motorist, personal
injury protection and medical insurance for the automobile. If the City
Manager elects to use an automobile which is not furnished by the City,
the City shall pay the City manager a monthly allowance of $550 and a
$200 monthly gas allowance. The fuel allowance shall be adjusted
annually by the City Commission based on fuel costs.
5.3 Equipment
5.3.1 The City shall provide at no cost to the City Manager all equipment,
material and devices necessary or desired to efficiently and effectively
carry out the City Manager's duties to the City's benefit, which may
include, but not limited to: a cellular phone, personal digital assistant,
radio, pager, hard hat, reflective vest, emergency equipment, etc. Any
equipment, material and devices so provided shall remain the property of
the City and shall be immediately returned to the City by the City
Manger upon termination or expiration of this Agreement.
5.3.2 The City shall indemnity, defend and hold harmless the City Manager
against any tort, professional liability claim or demand or any other legal
action arising of an alleged act or omission occurring from the
performance of the City Manager's duties. The City will litigate
compromise or settle any such claim, demand or legal action and pay the
amount of any settlement or judgment rendered thereon. Additionally,
the City, or its insurer, will provide suitable legal representation for the
City Manager for any and all proceedings, mediations, arbitrations, law
suits or appeals related to or arising out of the City Manager's affiliation
with the City. The City shall be under no obligation to indemnify and
hold harmless the City Manager where he is found to have acted
dishonestly, in bad faith or in a manner exhibiting wanton and willful
disregard of human rights, safety or property. This entire
indemnification provision shall survive the termination of this
Agreement.
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5.3.3 The City Manager shall furnish a surety bond to be approve by the
Commission, as required under art. VI, sec 2 of the charter, in such
amount as may be determined by the Commission. The City shall be
responsible for payment of the premium of this bond. The City Manager
shall secure a surety bond, upon approval of the commission, within 30
days of the effective date of this agreement.
5.3.4 The City shall pay registration, travel and per diem expenses, as
authorized by law, for the City Manager's attendance and representation
of the City at the International County Manager Association, the Florida
City /County Management Association and the Florida League of Cities
annual conferences, and any other related conferences, meetings,
conventions or seminars the Commission may direct or authorize the
City Manager to attend.
5.3.5 The City shall reimburse the City manager for pertinent, reasonable
and customary professional society or association dues, subscriptions,
training or other costs related to the continued professional growth and
recognition of the City Manager.
6. TERMINATION
6.1 The City may terminate this Agreement with or without cause in accordance
with art. III, sec 3 of the City Charter, subject only to the severance provision
set forth in this Agreement.
6.2 The term "for cause "shall be defined to mean (1) breach of any material term
or condition of this agreement; (2) conviction of a felony during the term of
this agreement; (3) misconduct in office; (4) gross insubordination and, or
willful neglect of duty; or (5) a knowing or intentional violation of the
Florida or Miami -Dade County conflict of interest and code of ethics laws.
A "for cause" termination decision may be reviewed by the circuit court in an
original action or a de novo review proceeding.
6.3 In the event that the Commission wishes to terminate the City Manager "for
cause ", the Commission shall first submit "A Notice of Intent to
discipline /terminate" in writing to the City Manager, detailing the reason(s)
of the intent. Upon receipt of the Notice of Intent to discipline /terminate the
City Manager shall have seven (7) days to request a hearing.. A hearing shall
be afforded to the City Manager within thirty (30) days.
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6.4 In the event that the Commission terminates this Agreement "for cause ", the
City shall not be obligated to pay and the City Manager shall not be entitled
to receive any severance compensation other than the cash value of accrued
but unused leave time or sick time, and any salary and other benefits earned
up to the effective date of the termination, unless the amounts for accrual
leave and sick time are used as a set off for any amounts owed by the City
Manager to the City. The payment for unused leave or sick time shall be
paid within seven (7) days of the effective date of the termination.
6.5 In the event that the Commission terminates this Agreement "for
convenience" during the first year of the Agreement term, the City shall pay
the City Manager a lump sum cash payment equal to the City Manager's base
salary for six (6) months as a severance benefit. The severance benefit shall
be paid within seven (7) days of the effective date of the termination. In
addition to the severance benefit, the City shall continue to provide all
insurance benefits from the effective date of the termination for a period
equal in time to the basis of the severance benefit. The .City shall not be
obligated to pay for any other allowances or benefits after the effective date
of termination and shall not be financially obligated to the City manager
thereafter, except as may be required by the indemnity provision herein.
In the event the City Manager terminates this Agreement, the City Manager
shall not be entitled to severance benefits.
7. RETURN OF PROPERTY
7.1 Immediately upon termination of this agreement, the City Manager shall
return all City property in his possession or control, including but not limited
to keys, computers, cell phone, pagers, vehicle, documents and any other
property of the City.
8. OTHER TERMS AND CONDITIONS
Dispute Resolution. Any claims or dispute arising out of or related to
this Agreement shall be subject to informal mediation as a condition
precedent to the initiation of legal or equitable proceedings by either
party. Mediation shall be deemed complete upon either an executed
written settlement of the claim or dispute or the expiration of forty — five
(45) days from the date either party serves the other with a written
request for mediation and the other party has not responded: The parties
shall share equally the mediator's fee and any filing fees. Mediation
shall be held in Miami -Dade County, Florida and settlements or other
agreements reached in mediation shall be enforceable as settlement
agreements in the Circuit Court for the 1 Vh Judicial Circuit of the State
of Florida.
Waiver of a Jury Trial. Both parties hereby waive any right to arbitration
and to jury trial.
Venue. Any legal or administrative action arising under this Agreement,
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including an action to enforce the Agreement, shall be brought in state
court in Miami -Dade County, Florida and administered and be governed
by Florida law
Construction. In the event a court of competent jurisdiction must
interpret any word or provision of this Agreement, the word or provision
shall not be construed against either party by reason of drafting or
negotiating this Agreement.
Notice. Any notice required or provided for in this Agreement shall be
given to the parties at the addresses provided in the execution of this
Agreement.
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.
Non- Waiver. The waiver by either party of a breach of any provision
herein by the other shall not operate or be construed as a waiver of any
subsequent breach by that party.
Sovereign
Immunity. The City does not waive its sovereign immunity
for any claim arising under, or related to, this agreement other than for
breach of contract. The City shall not be liable to pay for damages, other
than amounts due under this agreement, in the event it is adjudicated to
be liable for breach of contract, or otherwise permitted by law.
Notwithstanding this limited waiver of sovereign immunity, the City
does not waive its immunity from, and shall not pay awards for
prejudgment interest and/or attorney's fees.
Policy. The Commission may fix any other terms and conditions of
employment it may determine from time to time to be necessary and in
the City's best interest relating to the performance of the City Manager,
provided that such terms and conditions are compatible with the
provisions of this agreement, Florida Statues and any other law, and are
agreed to in writing by the City Manager.
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ATTEST:
6130 Sunset Drive
South Miami, Flor
Maria Menendez, rty Clerk W. Ajibola Balo ity Manager
15150 SW 166 ' Street,
Miami, Florida 33187
APPROVED AS TO FORM:
W ESSESS:
igueredo, City Attorney
Maria M. Menendez
I, , City Clerk o th City of South Miami, Miami -Dade
County, Florida do hereby certify that this is true and correct copy of Employment
Agreement between the City of South Miami and W. Ajibola Balogun as shown in the
official records of the City of South 'ami, Miami -Dade County, Florida. Given under
my hand and seal, this -7� day of , 2008.
'a�) ca __0 - a�
City Clerk
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RESOLUTION NO. 81-08-12678
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF
THE CITY OF SOUTH MIAMI, FLORIDA, RELATING TO THE
POSITION OF CITY MANAGER; AND RELATING TO
CONTRACTS; AUTHORIZING THE EXECUTION OF A
CONTRACT BETWEEN THE CITY OF SOUTH MIAMI AND W.
AJIBOLA BALOGUN; 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 Mayor and City Commission authorized the City Attorney
to enter into negotiations with W. Ajibola Balogun, as the proposed City Manager
so as to prepare a draft employment agreement; and,
WHEREAS, the City of South Miami and W. Ajibola Balogun wish to
employ Mr. Balogun's services as City Manager 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;
Section 1. The above whereas clauses are incorporated by reference into
the body of this resolution.
Section 2. The term of the contract between the City of South Miami and
W. Ajibola Balogun shall be as provided for in attached exhibit A to this
resolution, which exhibit contains the draft employment agreement for Mr.
Balogun, as City Manager.
Section 3. The City Manager will meet ' individually with each
Commissioner on an annual basis to discuss his performance.
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Res. no. 81-08-12678
Section 4. This resolution shall take effect immediately upon approval.
PASSED AND ADOPTED this 3rd day of June, 2008.
ATTEST:
2r CLERK
READ AND APPROVED AS TO FORM:
Luis R. redo;
Nagin Gallop & Figueredo, P.A.
Office of City Attorney
APPROVED:
COMMISSION VOTE:
4 -1
Mayor Feliu:.
Yea
Vice Mayor Beasley:
Yea
Commissioner Wiscombe:
Yea
Commissioner Beckman:
Nay
Commissioner Palmer:
Yea
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