07-24-07 Item 281
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RESOLUTION NO.:
A RESOLUTION OF THE MAYOR AND CITY COMMISSION
OF THE CITY OF SOUTH MIAMI, FLORIDA, RELATING TO
THE TERMINATION OF YVONNE SOLER - MCKINLEY AS
CITY MANAGER; AUTHORIZING THE PAYMENT OF
SEVERANCE BENEFITS TO MRS. SOLER - MCKINLEY AS
PROVIDED FOR UNDER THE CITY MANAGER'S
EMPLOYMENT AGREEMENT WITH THE CITY;
AUTHORIZING THE FUNDS TO BE DISBURSED FROM
ACCOUNT NUMBER: ; APPROVING
THE ATTACHED ACKNOWLEDGEMENT, WAIVER AND
RELEASE AGREEMENT; AND PROVIDING AN EFFECTIVE
DATE.
WHEREAS, the Mayor and City Commission have elected to exercise their
option under Paragraph 6.6 of the Employment Agreement between the City of
South Miami and Yvonne Soler- McKinley and terminate the employment
agreement for convenience; and,
NOW THEREFORE BE IT RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA;
Section 1. The Employment Agreement between the City of South
S
Miami and Yvonne is terminated for convenience.
Section 2. Pursuant to section 6.6 of the Employment Agreement the
City Manager shall receive a lump sum severance payment of $69,226.82, which
is equivalent to four months of the manager's base salary. The City shall not pay
any other allowances or benefits. Severance payments shall be issued from
account no.:
Section 3. This resolution shall take effect immediately upon approval.
Additions shown by underlining and deletions shown by everstfiking.
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PASSED AND ADOPTED this
ATTEST:
CITY CLERK
READ AND APPROVED AS TO FORM:
Luis R. Figueredo, Office of City Attorney
Nagin Gallop & Figueredo, PA
day of July, 2007.
Page 2 of 2
MAYOR
COMMISSION VOTE:
Mayor Feliu:
Vice Mayor Wiscombe:
Commissioner Birts Cooper:
Commissioner Palmer:
Commissioner Beckman:
'Yr
ACCRUAL INFORMATION
HOURS
HOURS TYPE
TOTAL
HOURS
PAY -OUT
NEW VACATION LE
84
5,407.50
PERSONAL HOURS
144
9,270.00
SICK LEAVE
104
6,695.00
ACCRUAL HOURS PAYOFF*
0.00
64.375
21,372.50
ACCRUAL TOTAL*
332
21,372.50
SEVERANCE PAY & ACCRUAL PAYOFF CALCULATION
DESCRIPTION
HOURS
RATE
WAGES
4 MONTHS SEVERANCE PAY
640
64.375
41,200.00
ACCRUAL HOURS PAYOFF*
332
64.375
21,372.50
FICA
7.65%
4,786.80
L-T DISABILITY (4 MONTHS)
26.16
104.64
HEALTH INSURANCE (4 MONTHS)
401.46
1,605.84
DENTAL INSURANCE (4 MONTHS)
32.76
131.04
VISION INSURANCE (4 MONTHS)
6.5
26.00
TOTAL AMOUNT
6.9,226.82
THIS FIGURE DOES NOT REFLECT ANY ACCRUAL HOURS USED BETWEEN 07/01/07 AND THE PRESENT.
EMPLOYMENT AGREEMENT
BETWEEN
THE CITY OF SOUTH MIAMI
AND
WONNE SOLER- MCKINLEY
This Agreement is made and entered into this '?,,`7 day of August, 2006, by and
between the City of South Miami (hereinafter, "City ") and Ms. Yvonne Soler- McKinley
(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,
the 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
1.1. The City, pursuant to art. I11, sec. 1 of the City Charter and acting through
its Board of City Commissioners ( "Commission "), have by City Resolution 91 -06 -12232
elected to employ Ms. Yvonne Soler - McKinley as its City Manager.
1.2. Ms. Soler- McKinley, 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
2.1. The City Manager, pursuant to art. II, sec 7.A 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 provisions of this Agreement.
2.2. This Agreement shall continue in force for a period of three years from the
effective date.
2.3. This Agreement may be renewed for additional one -year terms.
Employment Agreement — City Manager Page i of 10
2.4. 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 REPSONSIBILITIES OF THE CITY MANAGER
3.1. 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.
3.2. The City Manager shall report and be accountable only to the
Commission.
3.3. 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.
3.4. The City Manager 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.
3.5. The City Manager shall devote her time and interests 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.
3.6. The City Manager may engage in other professional endeavors unrelated
to City business or affairs, provided that such endeavors;
(i) are approved by the Commission upon request and disclosure by
the City Manager of the nature of the endeavor, its duration and the estimated
time requirements and schedule commitments, and
(ii) do not violate the prohibition against dual office holding: and
(iii) do not create the reality or appearance of a conflict of interest; and
(iv) do not materially detract from the time or schedule to accomplish
the City Manager's duties and objectives.
Employment Agreement — City Manager Page 2 of 10
3.7. The City Manager warrants that:
3.7.1. She does not now :have, and that she will not knowingly enter into,
any contract or relationship with another person or entity that creates a conflict of
interest, as that term is described in sec. 2 -11.1 of the Code of Miami -Dade County and
the City's Conflict of Interest and Ethics Codes,
3.7.2. She has not paid or agreed to pay any person any consideration for
the procurement of this Agreement,
3.7.3. She will uphold the State, County and City ethics codes and the
Florida Public Meeting and Public Records laws (Sunshine Laws), and
3.7.4. In the event she has any concerns or reservations about any
pending actions as they may relate to the above topics, will seek legal advice from the
City Attorney and/or direction from the Commission.
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, personnel 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. Any Commission member, acting alone and without authorization of the
Commission, shall not direct the City Manager to enter into or terminate any contract, 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„
4.3. To the extent practical, Commission members shall address their concerns
regarding the financial condition, operations, personnel and other city matters directly to
the city manager and the city manager shall address those matters with the city staff,
consultants, contractors and advisors. Individual members of the City Commission shall
not, acting alone and without authorization of the city commission, direct the city
manager to enter into or terminate any contract, to grant or withhold funds to any person,
nor instruct any city personnel under the city manager's control to take or refrain from
taking any action. This paragraph shall not 'be applied to limit the non - interference
provisions of art. VI, sec. 7 of the City Charter.
Employment Agreement — City Manager Page 3 of 10
4.4 The Commission shall review the performance of the City Manager
annually, on or before each anniversary of this Agreement, and in accordance with
established criteria for the annual performance reviews for the City Manager.
4.5 The Commission may grant the City Manager an annual merit salary
increase on or before each anniversary of this Agreement in an amount determined by the
Commission, having considered such factors as job performance, experience, length of
employment, satisfaction of objectives, responsiveness or other factors as the
Commission may deem to be important.
4.6 The Commission, for unforeseen fiscal adversity, may elect to either
temporarily or permanently reduce the salary and/or benefit payments to City employees.
In the event the Commission reduces the salary or other benefits of the City Manager in a
greater percentage than 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 provision 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 is not cured within the forty -five (45)
day period, the City Manager may consider the violation to be 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.
5. SALARY AND BENEFITS
5.1. Salary
5.1.1. The City Manager shall initially receive an annual base salary of
$14", commencing with the effective date of this Agreement and paid in the same
frequency and proportion as that of other salaried City employees and subject to the same
legally required deductions.
5.1.2. 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 Manager's role, if any, in negotiating such an adjustment with
Employment Agreement — City Manager Page 4 of 10
recognized collective bargaining organizations shall not be considered a conflict of
interest.
5.2. Benefits
5.2.1. The City Manager shall be credited with eighteen (18) days of
personal leave time at the commencement of the Agreement and shall accrue the
equivalent of 1.5 days of "leave time" and 1.0 days of "sick time" per month of
employment thereafter.
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 in the same
plans, terms and conditions as available to other unclassified City employees. The City
shall also provide the City Manager, at the City's expense, a comprehensive annual
physical examination 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 an amount equal to fifteen percent (15 %) 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 and a
vehicle and gasoline allowance of $500 and $100 per month, respectively. The gasoline
allowance shall be escalated by ten percent (10 %) annually on the anniversary date of this
Agreement. In lieu of the gasoline allowance, the City may authorize the City Manager to
use gasoline dispensed from the City's fueling facility up to the equivalent value.
5.3. Equipment
5.3.1. The City shall provide or provide for all equipment, material and
devices necessary or desired to efficiently and effectively carry out the City Manager's
duties to the City's benefit, including, 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
Employment Agreement — City Manager Page 5 of 10
shall be either returned to the City or have the financial responsibility for it assumed by
the City Manager upon termination or expiration of this Agreement.
5.3.2 The City shall indemnify, defend and hold harmless the City
Manager against ay 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 she 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 or expiration of this Agreement
5.3.3 The City Manager shall furnish a surety bond to be approved by
the Commission, as required under art. V'I, 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 Managers 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, and as may be represented in the City's annual budget.
Employment Agreement — City Manager Page 6 of 10
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
provisions 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 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 accrued 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 made within fifteen (15) days of the effective date of the termination.
6.4 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 three (3)
months as a severance benefit. The severance benefit basis shall increase by one month
for each additional year, or portion thereof, of employment under this Agreement, subject
to a maximum benefit limit of six (6) months of base salary, at the time of termination.
The severance benefit shall be paid within fifteen (15) 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.
Employment Agreement — City Manager Page 7 of 10
6.5 The City Manager may terminate this Agreement through an act of
resignation by providing the Commission with at least thirty (30) days prior written
notice. In the event that at least thirty (30) days prior written notice is provided, the City
Manager shall be entitled to full pay and benefits until the effective date of the
resignation, at which time the City will be obligated to pay only the cash value of accrued
but unused leave or sick time on the effective date and all insurance benefits for an
additional thirty (30) days. In the event that the City Manager terminates this Agreement
through an act of resignation with less than thirty (30) days advance written notice, the
severance provisions of a termination "for cause" shall apply unless the Commission
elects otherwise.
7. RETURN OF PROPERTY
7.1 Upon termination of this agreement, the City Manager shall immediately
return all City property in her 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
8.1 Dispute Resolution. Any claim 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 I Ph Judicial Circuit of
the State of Florida.
8.2 Waiver of a Jury Trial. Both parties hereby waive any right to arbitration
and to jury trial.
Employment Agreement — City Manager Page 8 of 10
8.3 Venue. Any legal or administrative action arising under this Agreement,
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.
8.4 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.
8.5 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.
8.6 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.
8.7 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.
8.8 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.
8.9 Policy. The Commission shall 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 Statutes and any
other law, and are agreed to in writing by the City Manager.
8.10 Effective Date. The Effective Date of this Agreement shall be the date of
approval by Resolution of the Commission; Resolution No. 91- 06- 12232.
Employment Agreement —,City Manager Page 9 of 10
ATTEST:
aria Menendez,
City Clerk
APP AS TO FO .
7
Luis igueredo,
City Attorney
Employment Agreement — City Manager
CITY OF SOUTH MIAMI
6130 Sunset Drive
South Miami, Florida 33143
Horace G. Feliu
Mayor
f
J f � q F �R Aa- / /� /���02
' VONNE SQjLER- MCKINLEY ��
10765 Southwest 1334 Terrace
Miami, Florida 33176
Page 10 of 10
ORDINANCE NO. 19-06-1887
AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE
CITY OF SOUTH MIAMI, FLORIDA, RELATING TO CONTRACTS;
APPROVING AN EMPLOYMENT CONTRACT BETWEEN THE CITY OF
SOUTH MIAMI AND THE CITY MANAGER; PROVIDING FOR TERMS
AND CONDITIONS; PROVIDING FOR SEVERABILITY; PROVIDING
FOR ORDINANCES IN CONFLICT; AND PROVIDING AN EFFECTIVE
DATE.
WHEREAS, the City of South Miami following a comprehensive search selected Yvonne
McKinley to serve as City Manager; and
WHEREAS, the City Attorney and Ms. McKinley have successfully negotiated a proposed
employment contract, which is attached to this ordinance as app. 1; and
WHEREAS, the Mayor and City Commission desire to approve this contract
NOW THEREFORE BE IT ORDAINED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA;
Section 1. The employment contract between the City of South Miami and Yvonne
McKinley which is attached to this ordinance; is approved. The City Manager is authorized to
exercise this contract on behalf of the City.
Section 2. This ordinance shall take effect immediately upon enactment.
PASSED AND ADOPTED this $ day o v,, 2006.
ATTEST:
Y CLERK
REA P AS TO FORM:
Luis . Fi o,
Nag' allop Figueredo, P.A.
Office of City Attorney
APPROVED:
�U
MAYOR
1" Reading _ 7/25/06
2nd Reading - 8/15/06
COMMISSION VOTE: 3-2
Mayor Feliu:
Yea
Vice Mayor Wiscombe:
Yea
Commissioner Birts:
Yea
Commissioner Palmer:
Nay
Commissioner Beckman:
Nay
Additions shown by underlining and deletions shown by e ef„ter„