2014-28692 Reso i
RESOLUTION NO. 2014-28692
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF
THE CITY OF MIAMI BEACH, FLORIDA, APPROVING AND
AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE
AN EMPLOYMENT AGREEMENT BETWEEN THE CITY OF
MIAMI BEACH AND CITY ATTORNEY RAUL J. AGUILA, WITH
THE CITY ATTORNEY'S TERM OF EMPLOYMENT HAVING
BEEN DEEMED TO COMMENCE RETROACTIVELY, AS OF
HIS APPOINTMENT DATE ON MAY 16, 2014.
WHEREAS, on April 9, 2014, pursuant to Resolution No. 2014-28540, the Mayor and
Commission appointed Raul J. Aguila as City Attorney of the City of Miami Beach (City) to be
effective on May 16, 2014; and
WHEREAS, it is the desire of the City to provide certain benefits and to establish certain
conditions of employment for Raul J. Aguila in his capacity as City Attorney; and
WHEREAS, Raul J. Aguila desires to accept the position of City Attorney pursuant to the
terms and conditions set forth in the attached Employment Agreement, the terms of which the
parties agree will promote his continuous productivity and efficiency in the best interest of the
City.
NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City
Commission hereby approve and authorize the Mayor and City Clerk to execute an Employment
Agreement between the City of Miami Beach and City Attorney Raul J. Aguila, with the City
Attorney's term of employment having been deemed to commence retroactively, as of his
appointment date of May 16, 2014.
PASSED and ADOPTED this 23 day of a , 2014.
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EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is entered into this
day of July, 2014, by and between RAUL J. AGUILA ("Employee") and the CITY OF MIAMI
BEACH, FLORIDA (the "City") (collectively,the "Parties").
WHEREAS, on April 9, 2014, the City Commission unanimously adopted Resolution
No. 2014-28540, appointing Raul J. Aguila ("Employee") to the position of City Attorney of the
City of Miami Beach, Florida, effective May 16, 2014; and
WHEREAS, the City, acting by and through its City Commission, desires to employ
Employee as its City Attorney on the terms and conditions set forth in this Agreement, and
Employee desires to accept employment as City Attorney on those same terms and conditions;
NOW THEREFORE, the Parties agree as follows:
1. Recitations. The Parties agree that the recitations above are true and correct and
are incorporated as if fully set forth here.
2. Employment. The City agrees to employ Employee as its City Attorney and
Employee agrees to be so employed. Employee will perform the duties of the office of City
Attorney as set forth in the Charter and Code of the City of Miami Beach, Florida, as well as all
such other duties customary and appropriate to the position of City Attorney. Employee will
devote his full working time to his duties as City Attorney and will not accept or perform any
other employment, paid or unpaid, while he is employed as City Attorney, except as expressly
set forth herein or expressly agreed to by the City Commission. However, nothing in this
Agreement shall prohibit Employee from other occasional work, such as teaching, writing,
community activities, pro bono work, or civic or charitable activities; provided, however, that
such work shall not interfere with Employee's duties as City Attorney
3. Employment At Will. Employee is employed at will and serves at the pleasure of
the City Commission. This Agreement and his employment may be terminated by the City
Commission at any time, with or without cause, subject to the termination provisions of this
Agreement.
4. Effective Date; Term. Upon approval by the City Commission and execution by
the Parties, this Agreement shall be deemed to have commenced retroactively as of May 16,
2014 (the "Effective Date"). The Agreement shall have an initial term of three (3) years,
commencing on the Effective Date, and expiring at midnight, May 15, 2017, unless terminated
earlier, or renewed, as set forth herein.
5. Compensation. Employee shall receive the compensation set forth in this Section
5 for performing the duties of City Attorney. Nothing other than those items set forth in this
Section 5 shall be considered or treated as compensation, wages, salary, earnings, or
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remuneration to Employee for any purpose whatsoever, including pension; or for purposes of
Section 448.08, Florida Statutes; or for purposes of arbitration under Section 17 hereof.
a. Sala . The City shall pay Employee an annual base salary of
$256,000.00. This salary shall be paid bi-weekly according to the usual payroll practices
of the City applicable to unclassified general employees.
b. Insurance. The City will pay the full amount of premiums for the City-
offered group medical and group dental plan selected by Employee. The City will pay
the full amount of premiums for the City-offered life insurance policy on Employee.
C. Leave. Employee will be eligible to accrue, use, and convert leave hours
to the extent and on the terms applicable to unclassified general employees.
d. Pension. Employee shall continue as a member of the Miami Beach
Employees Retirement Plan pursuant to the governing ordinance of the Plan (which
Plan, at the time of the Effective Date of this Agreement, includes an accrual factor of 4
percent for the position of City Attorney).
6. Non-Compensation Expenses and Reimbursements. The City will pay for,
reimburse or otherwise provide for the items set forth in this Section 6. These items are aid
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for, reimbursed, or otherwise provided because they inure to the benefit of the City, and do not
constitute compensation, wages, salary, earnings, or remuneration to Employee for any purpose
whatsoever, including pension; or for purposes of Section 448.08, Florida Statutes; or for
purposes of arbitration under Section 17 hereof.
a. Vehicle. The City will pay to Employee a vehicle allowance, in the
amount of$6,000.00 annually, paid in proportionate bi-weekly installments, to reimburse
Employee for the use of his personal vehicle for the benefit of the City.
b. Information and Communications Technology Expenses. The City will
provide to Employee adequate and reasonable information and communications
hardware, software, and services to support Employee in the performance of his duties as
City Attorney.
C. Subscriptions, Memberships, and Fees. Employee may include, as an
expense item in the budget of the Office of the City Attorney, an amount to be used to
pay for such reasonable subscriptions, memberships, and fees and other similar costs,
such as travel and lodging, as may be incurred for development and advancement related
to, in support of, and inuring to, the benefit of the City. No payment authorized
hereunder may be made to an entity that illegally discriminates on the basis of race, color,
gender, religion, national origin, age, disability, marital status, or sexual orientation.
7. Annual Performance Evaluation.
An annual performance evaluation, including salary and benefits review (the
"Evaluation"), of Employee will be made by the City Commission at least once every year,
within 30 days after May 16th of each year. At such time, the City Commission shall review the
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annual salary and/or benefits of Employee, and shall make ad j ustments in such amounts and to
such extent as the City Commission, may determine that it is desirable to do so. Additionally, at
such time, the Mayor shall provide Employee with a written summary of the findings of the City
Commission and provide an adequate opportunity for Employee to discuss the Evaluation with
the City Commission.
8. Renewal by City. The City Commission may renew, or extend, the term of this
Agreement by Resolution, on the same terms and conditions as set forth in this Agreement, or on
such modified terms and conditions to which the City Commission and Employee may mutually
agree upon. Should the City Commission not renew (or extend) the Agreement, then the
Agreement shall expire at the end of the initial, or any succeeding, term then in effect, and
Employee's employment shall simultaneously end upon the expiration of such initial, or
succeeding, term.
In the event that the City Commission determines not to renew (or extend) this
Agreement, it will give Employee written notice of its intent not to renew (or extend); which
notice shall be given to Employee at least ninety (90) days prior to the expiration of the initial, or
any succeeding, term. If no such notice, or untimely notice, is given, then the City shall, upon
the end of the initial, or any succeeding, term, pay Employee an amount equivalent to 12 weeks
of the salary amount set forth in Section 5 (the "Separation Payment"), in addition to all
payments due for work performed through the date of termination and other payments due, if
any, upon termination, on the same terms and conditions applicable to unclassified general
employees. Upon payment of the Separation Payment and other payments due under the
preceding sentence, the City shall have no further liability to Employee whatsoever.
9. Termination by City. The City Commission may terminate this Agreement (and
thereby Employee's employment) at any time, without or without notice, and with or without
cause, upon ninety (90) days prior written notice to Employee.
In the event of termination pursuant to this Section 9, the City shall pay Employee an
amount equivalent to 20 weeks of the salary amount set forth in Section 5.a (the "Severance
Payment"), in addition to all payments due for work performed through the date of termination
and other payments due, if any, upon termination, on the same terms and conditions applicable to
unclassified general employees. Upon payment of the Severance Payment and other payments
due under the preceding sentence, the City shall have no further liability to Employee
whatsoever.
If, at any time during the term of this Agreement, the City: (i) reduces the Compensation
in Section 5 (including, without limitation, the salary set forth in 5.a) , or other financial benefits
of Employee (including those set forth in Section 6), in a greater percentage than an applicable
across the board reduction for all unclassified employees of the City; or (ii) refuses, after written
notice, to comply with any other provision of this Agreement benefitting Employee; or (iii)
through a majority of the entire City Commission, in a public meeting, requests that Employee
resign, then Employee may, at his option, deem this Agreement to be terminated by the City,
within the meaning and context of this Section 9 and, accordingly, Employee shall be entitled to
the Severance Payment, in addition to all payments due for work performed through the date of
termination, and other payments due, if any, upon termination, on the same terms and conditions
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applicable to unclassified general employees. Upon payment of the Severance Payment and
other payments due under the preceding sentence, the City shall have no further liability to
Employee.
10. Termination by Employee.
Employee may terminate this Agreement upon 90 days prior written notice to the City.
In the event of such termination, the City shall pay Employee any payments due for work
performed through the date of termination, and other payments due, if any, upon termination, on
the same terms and conditions applicable to unclassified general employees. Upon such
payment(s), the City shall have no further liability to Employee whatsoever.
11. Bonds. The City shall bear the full expense of any fidelity or other bond required
of Employee, in his capacity as City Attorney, under any statute, ordinance, or regulation.
12. Indemnification. The City shall indemnify and defend Employee or, at its option,
provide a defense to Employee, against claims arising out of and in the course and scope of his
employment or function, consistent with and to the extent of Florida law under Chapter 111,
Florida Statutes, and a public official's right to a defense against claims arising from their
performance of their public duties performed while serving a public purpose under the common
law of Florida.
13. Notice. Any notice hereunder shall be effective if made by delivery, postage paid,
to the United States Postal Service or by a manner valid for personal service under the Florida
Rules of Civil Procedure or by public statement on the record during a meeting of the City
Commission in the presence of the party to whom notice is to be given. Notice, for purposes of
this Agreement, is to be given to:
City: Mayor
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
and
City Manager
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
Employee: Raul J. Aguila
P.O. Box 190734
Miami Beach, Florida 33119
14. No Assignment or Delegation; No Third-Party Beneficiaries. The services
provided by Employee are considered unique and personal to him. Accordingly, Employee may
not delegate or assign any duty, obligation, or benefit attaching or accruing hereunder. This
Agreement is entered into and intended for the benefit solely of the City and of Employee and
not for the benefit of any other person or entity.
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15. Entire Agreement, Severability, Modification, Waiver. The provisions of this
Agreement constitute the entire agreement between the Parties on its subject matter and this
Agreement supersedes any other agreement, understanding, representation, or promise
whatsoever. Employee agrees that he has relied solely upon the express language of this
Agreement in determining whether to enter into this Agreement and not upon any other
understanding or communication of any kind, whether written or oral. Should a court or
arbitrator of competent jurisdiction determine that any provision or portion thereof of this
Agreement is illegal, invalid, or unenforceable, the remaining provisions or portions thereof shall
remain in full force and effect. This Agreement may be modified only by a writing signed by
both Parties and approved by the City Commission by Resolution. Waiver of any right or of any
breach of this Agreement by either party in any instance or instances shall not constitute or be
construed as a waiver in any other instance.
16. Construction, Governing Law, Headings. This Agreement shall be construed
according to its express language and not strictly for or against either Party, regardless of
authorship. This Agreement shall be governed by and according to the laws of the State of
Florida. Section headings are for convenience only and shall have no legal effect.
17. Arbitration. The Parties agree that any claim or dispute arising from this
Agreement, its interpretation, its renewal, or its breach, shall be settled in final and binding
arbitration by a single arbitrator under the Arbitration Policies and Procedures of the Federal
Mediation and Conciliation Service. A panel of arbitrators may be requested by either Party and
the Parties will select an arbitrator by alternative strikes. The first Party to strike will be
determined by agreement or coin flip. Each Party may one time reject a proposed panel of
arbitrators and request another. The Party requesting any panel shall bear the expense of the
request. The Parties shall bear equally the expense of the arbitrator and the location of the
arbitration hearing, which shall be in Miami-Dade County, Florida. The Parties shall each bear
their own costs, including attorney's fees, court reporter fees, and witness fees, if any. The
arbitrator shall apply a preponderance of the evidence standard of proof. The Party asserting a
claim or affirmative defense shall have the burden of persuasion as to that claim or affirmative
defense. The arbitrator shall not have authority to make any award of attorney's fees or the costs
of the arbitration. The arbitrator shall confine himself or herself strictly to the language of this
Agreement and shall have no authority to add to, subtract from, or modify any term or provision
of this Agreement. The arbitrator shall have no authority to construe any law, regulation, rule,
principle of law, decision, or provision or provisions of this Agreement, or to make any award
that would result in or obligate the City, directly or indirectly, to incur any debt, cost, expense, or
liability in excess of the amount initially budgeted, approved, and appropriated for the funding of
this Agreement. Any such purported construction or award will be null and void. The
arbitrator's award shall be subject to enforcement or vacation by the Circuit Court according to
law. Moreover, and without waiving the preceding limitation, in no case shall the either Party be
liable for any punitive, consequential, indirect, or incidental damages whatsoever.
18. Counterparts, Electronic Signatures. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original and all of which together shall
constitute a single instrument. Execution and delivery of this Agreement by electronic exchange
bearing the copies of a Party's signature shall constitute a valid and binding execution and
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delivery of this Agreement by such Party. Such electronic copies shall constitute enforceable
original documents.
WHEREFORE, the Parties, after full consideration, including consultation with
independent counsel, do knowingly, voluntarily, and intending to be legally bound, hereby enter
into this Agreement duly executed on the dates written below.
Attest: FOR CITY-
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Rafao E. Grana P ' ip e ayor
�,�•• "" ay of , 2014.
�N C P 0�'n T FOR EMPLOYEE:
Witness Si Raul J. Agui a,
64 S S 4+ 2-4- day of 2014.
PPa ure
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Print Name
FAATMAGMAGREEMENDRaul Aguila Employment Contract(7-17-14).docx APPROVED AS TO
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