10-08-09 Item 3 (2)CITY or sOUTH MIAMI
INTER- OFFICE MEMORANDUM
To: Mayor and City Comm'n. Date: February 11, 2009
From: Luis Figueredo Re: City Manager contract
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 fuml 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 pri6r to his anniversary date he would
receive an automatic merit increase in the makimum 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 Comrnission.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
ADDENDUM TO EMPLOYWNT AGREEMENT
This Addendum To Employment Agreement ( "Addendum ") is made this ..,2-
day of March, 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.
WHEREAS Subsection 6.5 of the executed employment agreement does not
accurately reflect the intent of the City Commission to pay the City Manager a lump sum
severance payment of six months as severance pay if he is_tenninated for convenience.
WHEREAS the City of South Miami and W. Ajibola Balogun wish to amend the
employment agreement by deleting "during the first year of the Agreement ten-a" from
the first sentence of subsection 6.5.
NOW THEREFORE, in consideration of the promises and mutual covenants set
forth, the parties do agree to amend the Employment Agreement as follows:
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. Subsection 6.5 of the Employment Agreement is amended to read as follows:
In the event that the Commission terminates this Agreement "for
convenience" 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 tenmination and shall not
be financially obligated to the City manager thereafter, except as may be
required by the indemnity provision herein.
3.. There areno additional changes to the employment contract_ The remainder of the
original agreement is in full force and effect.
IN WITNESS WPIEREOF, 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 abo e written.
CITY OF SOU MIAMI
6130 Sunset Dri
ATTEST: South Miami, Florida 33143
Maria M. Menendez, City Clerk W. Ajibola Balo n, City Manager
15150 SW 166' Street,
Miami, Florida 33187
APPROVED AS TO FORM:
tt
WITNE ES:
J-111 I,� . igueredo, rty A orney
I, %j%ahta )JAV- City Clerk of the City of South lfiaini, Miami -Dade
County, Florida do hereby certify that this is a true and correct copy of Addendum of
Employment Agreement between the City of South Miami and W. Ajibola Balogun as
shown in the official records of the City of South Miami,. Miami -Dade County, Florida.
Given under my hand and seal, this 3t day of I tV011 . , 2009.
City Cler
EMPLOYM FNT AGREEMENT
BETWEEN .
CITY OF SOUT )IMIAMI
AND
W. AJIBOLA BA,LOGUN
is made and entered into this �y °£� 2048, by and
This Agreement "Ci and Aiibola BaIo urn (hereinafter,
between the City of South Miami (hereinafter, tY) ' or be collectively
City Manager "), which hereafter may be individually ieferred to as a party'
referred to as "parties ".
ja provisions and
consideration of the promises, afar o r good and�valuableconsideration, and.
undertakings contained in this Agreement, and for other g
receipt and sufficiency Of which is hereby acknowledged by both Parties, the Parties covenant
and agree With each other as follows.-
. APFOINTIIMENT AS CITY MANAGER
The City, pursuant to art. I-TI, sec I of the City Charier and actin through 1 elected Mayor to and City employ
Commission ( "Conunassion'), have by City Resolution -
M a;ibola Baloaun as its City Manager.
Ralogpn upon approval of the terms of this Agreement by the Commission, agrees to
as the City Manager of the City of South Miami in accordance with. the terms and
serve;
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 fora fixed term of sixty (64) months, beginning March 24,
x448:
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 g
matters relating to public service such as community service, teaching,
Writing, p
engagements, pia Bono services and other professional endeavors uch activities require e9.0 e that � �ty
during the City Manager's off -duty time In the event any
a e in non -city related activity during his scheduled working hours, the City
Manager eng g
manager shall disclose the nature of the endeavor, its duration, estimated time retlu Commission
schedule comMitraents to the City COMmiSSIOn and receive the approval plio to engaging in such
prior to participating in the activity. Furfl=more, the City Manag p
endeavors, shall ensure that such endeavors:
(i) - do not violate the prohibition against dual office holdings;
(ji) do not create reality or appearance of conflict of interest; and
Page I of 9 �,
do not materially detract from the time or schedule to accomplish the
City Manager er's diztimor objectives.
'
Bement neither aliens the nature of the employment from an "at -will"
This Employment Agr to under the laws of the State of Florida.
employment nor creates a property rig ht to ezn P went y
3. DUTIES AN10 RESPONSIBILITIES OF TM 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 shali.perform
those
ed b duties law or inter-local agreement, and as directed by the
provisions of the City Charter, prescn Y
Commission.
er shall be solely responsible for hiring and terminating City employees,
The City 1,�ang . direction
subject to limitations imposed by budget authorizations, funding availability or policy
by the Corxxmission_
The City Manager shall devote his time and interest to the city's affai sub�i to EL minimum
day or day of week reasonably required or scheduled by the City Mang
average of forty (40) hours per week
ana er shall report to the City Attorney any alleged violation of 'Federal, State or
The City M g of this contract.
City laws, codes, ordinances as well as any violations of any terms
The City Manager warrants that:
Ile 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 -11A of the code of
Miami -Dade County and the-city's conflict of interest and Ethics Codes,
He has not paid or agreed to pay any person any consideration for the
procurement of this Agreement.
He will uphold the State, County, and City ethics does and the Florida
Public Meeting and Public Records laws (Sunshine haws), and .
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.
(i}
Oiii)
OV)
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4.
DUTIES AND pXSPONSIBUATIES OF THE CITY
.ss their To the extent practical, the Commission 'personal and otli City Matter s directly
regarding the financial condition, operations, p
to the City Manager, who sball 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 authorixativn of the Commission,
shall direct the City Manager to enter into or terminate any contract or to employ der
person, or to instruct any person under
person or, to grant or withhold funds r any p an s ecifie action. This
the City Manager's authority fo take or refrain from faking Y P
paragraph shall not be applied to limit the non - interference provisions of art. Vl, sec
7 of the City Charter.
4.3 The Commission shall review the performance of the City. Manager annually, not
s before the anniversary date established n
in this Agreement, and i
later than 60 day
accordance with established criteria for the annual performs -'xce reviews �� shall be the City
Manager. Merit increase Of City minimum established in day thbef r the annivenary
automatically awarded to the City Manager on the e p rfo
date, if Commission fails to perform or complete performance review for the
Manager.
4.4 The Commission shalt consider such factors as job performance, experience, and
length of employment, satis o benmpn objectives,
in responsiveness or other the annual factors as
the commission may deem
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 notifzeation
1 s of such action, shall have forty -five (45)
by the City Manager within fifteen (5) days
days from such notice within skull to considered a�constructivewtermination 'TOr
beyond the cure p as described
convenience", in which case the associated severance provisions, pursuant to the-
her
ein; shall be effective as of the day violation occurred and
salary, benefits or other conditions in effect immediately before the violation.
4.1
Page 3 of 9
04-11*-
5. SALARY AND BENEFITS
5,X Salary,
5,1,1 The City Manager shall initially receive an annual base salary o Manager
The, City M3 ager (eucing from the date of appointanent as City g
and paid in the same frequency and proportion as that of other salaried.
employees the and subject to the same legally required deductions. The
City Percent
City Manager shall to be considered for a maximum of seven p
(7%) merit increase effective on his anniversary
g 1.2 For no additional compensation, the City Manager shall continue to serve
as Public Works Director until September 30, 2008-
5. I.3 The City Manager shall be entitled to and ro ye 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.
S z Benefits
accrue the eeruirr�e� of
5.2.1.
The City Manager shall
time,. and 1.0 days of "sick time" p ,fie city Manager may
accumulate unwed vacation in m efa In addition,
ity employees accrue personal
receive personal y
days.
be entitled to all paid holidays customarily
5.2;2,
The City Manager shall,
to all City employees.
5.2.3.
granted
All comprehensive medical, dental, vision, disability and other health
shall be available to the City Manager
and, insurance options
and his fainily at to cost to the City Manager. The City shall also
a comprehensive annual
provide the City Manager, at the City's expense,
Ce nce and life
supplemental life terra
Physical e%amsnation, annual base salary.
to the city Manag
coverage in an amount equal
5.2.4.
The City shall contribute
amount tone eighteen percent l(18%) of the City
1 equal
an
City Manager shall occur on a pro-
Manager's annual, base salary. S uch contributions
basis per City pay Period.
rated
5.2.5.
The City shall provide the City Manager with a monthly expense
to the allowance provided to a member of the city
allowance equal
Commission.
5.2.6.
Because of the nature of the City Managers duties and responsibilities,
take —hone automobile The
the City Manager will,requhe the use of a
take home vehicle may be utilized for personal use. In the event the
used by the City
Commission elects to replace the automobile currently
page 4 of 9
0-IM
Manager, any replacement automobile will be a similar model.
Accordingly, the City Manager may, at his option, use his own motor
vehicle Wcontinue to use the automobile vprov provided to him
leb the City-
the CCity Manager elects to use a city p
be responsible for any pay of its purchase and all expenses related to its
maintenance, repair, fuel and replacement. The City shall also
operation, fiiz coixi rehensive uninsured motorist, personal
pay for all liability, property p
injury, protection and medical insurance for the automobik if the City
ed -by Manager elects to use an automobile which is not allowance of $55() the
a
the City shall pay the City manager a monthly adjusted
$200 monthly gas allowance. The fuel allowance shall be
annually by the City Commission based on fuel costs.
5.3 Egtiipment
$_3,1 The City shall provide at no cost to the City Manager all equipnaeni,
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 Iimited 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 tlie City
the City and shall be immediately returned to the City by
Manger upon termination or expiration of this Agreement.
5.3.2 The City shall indemnity, defend and hold harmless the City Manager i
g
against any tort, professional liability claim or demand or any other the
action arising of an alleged act or omission occurring
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 an out of the City Manager's affiliation
indemnify
with the City. The City shall be under no obligation to mnify and
hold harmless the City Manager where he is found to have acted
dishonestly, in bad faith or in a manner exhibiting wanton and wntffirul
disregard of human rights, safety or property. This -
iademilifcation provision shall survive the termination of this
Agreement.
page 5 of
5.3.3 The City Manager sball furnish a surely 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
iu
responsible for payment of the premm of ties bond. The City 30
shall secure a surety bond, upon approval of the commission,
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 time International County Manager ,A•ssocIiation, the Florida
City /County Management Association and the Florida Teague 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 U dues,
and customary professional society or associatio growth and
training or other costs related to the continued professional
recognition Of the City Manager.
g TERMINATION
6.1 The City may terminate this Agreement with or without to the severance pro sion
with art. a sec 3 of the City Charter, subject only
set forth in this Agreement
6.2 The term "for cause "shall be defined to mean (1) breach.. of any material term
conviction of a felony during the term of
or condition of this agreement; { 2 )
misconduct in office; (4) gross insubordination and, or
this agreement; (3) or {5) a knowing or intentional violation of the
willful neglect of duty;
Florida. or MianA -bade 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 Tn the event that the Commission wishes b terminate Nome Manager f Tntent ` to
cause, the Commission shah firs
discipline/terminate" in writing
to the City Manager, detailing the reason {s) to discipline/termfDatc the
of the intent. Upon receipt of the Notice of Intent a hearing.. A hearing 'shall
City Manager shall have seven (7) days to requ 30 days.
be afforded to the City Manager within { )
page 6 of9
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 o£ 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 temvnnation-
6. S in the event that the Commission terminates this Agreement
the City shall pay
convenience" during the first year of the Agree er °s base
the City Manager a Iump sum cash payment equal to the City Manag
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
nsurance benefits fxom 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.
th
In the event the City Manager terminates this Agreement< e City Manager
shall not be entitled to severance benefits.
ry. RETJRN OF PROPERTY
7:1 Immediately upon termination of this agreement, the City Manager shall
.return an 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 ANA CONDITIONS
Dispute Resolutiou- 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 bas 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 110' 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,
Pap 7 of 9
including an action to enforce. the Agreement, shall be brougbt. in state.
court in Miami-Dade County, Florida and. administered and be governed
by Florida law
Construction. In the event a court Ofcompetent jurisdictionmuss the word or provision.
interpret any word or provieitherAgreement, ri b reason of drafting or
shall not be Construed against party y
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 fhall
not affect the validity of the Agreement as a whole or any p a
Agreement other than the part declared to be invalid.
Nan - 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
The City does not waive its sovereign immunity
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 andlor attorney's fees.
Policy. The Commission may Sac 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.
page 8 of
6
Y OF so x
6130 sunset Drive
South Miami, Flori 3143
ATTEST:
,i W, A jxbola Ba10 , ity Manager
15150 SW 166` Street,
Miami, Florida 33187
,APPROVED AS TO FORM:
;xgueredo, City AttorneY
Maria M. Menendez ,City Clerk of th City of South Miami, Miami -Dade
County, Florida do hereby certify that this is true and eorrecf copy as shown in the
Agreement between the City a£ South Miamu and W. Ajibola lialogun
official records of the City of South aml, Miami -bade County, Florida. Given under
my hand and seat this � day of 20fl 8.
City Clerk .
Page 9 of 9
RESOLUTION NO. 81 -08 -12578
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF
THE CITY OF SOUTH MIAI+�1.I, FLORIDA, RELATING T TEE
POSITION OF CITY MANAGER; AND RP- LA.TMNG TO
CQN;E`I,Z.A_CTS; AUTHORIZING THE
SOUTH MIAMI AND W.
CONTRACT BETWEEN THE CITY
AJIBOLA BAI,OGUN; PROVIDING AN EFFECTIVE DATE.
WHEREAS pursuant to A� iicle II, Section 7 of the City of South IVEami
Charter-the Mayor and City Comm-ssion is vested with the power to appoint a City
Manager; and.,
VgIEREAS, the Mayor and City Commission authorized the City Attorney
proposed City Manager
th
to enter into negotiations with W. A_jibola Balogun, as P P
so as to prepare a draft employment agreement; and,
VIBER.j3,A,S, the City o£ South Miami and W. A.jibola Balogua wish to
employ Mx. Baiogun's services as City Manager of the City of South Miami by
executing the attached contract.
NOW TBEItEFORE BE IT RESOLVED BY E MAYOR AND CITY
COMMISSION OF THE CITY' OF SOUTH MI.AMI>
SectT i� Q The above whereas clauses are incorporated by reference into
the body of this resolution.
Sect . The term of. the contract between the City of South Miami and
W. Ajibola Balogun shall be as provided for .ia 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.
page I of 2
Res_ no. 81 -08 -12678
Section 4. This resolution shall take effect immediately upon approval.
PASSER AND ADOPTED this Ta day of June, 2008.
ATTEST: APPROVED:
aa�� �� . 7
CLERK OR
READ AND APPROVED AS TO FORM:
Lui 3redo,
Nagin Gallop & Pigueredo, P.A.
Office of City Attorney
COMMISSION VOTE: 4-1
Mayor Feliu: _
Yea
Vice Mayor Beasley:
Yea
Commissioner Wiscombe,:
Yea
Commissioner Beckman:
Nay
Commissioner Palmer:
Yea
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