HomeMy WebLinkAbout2006-26176 Reso
RESOLUTION NO. 2006-26176
A RESOLUTION OF THE MAYOR AND CITY COMMISSION
OF THE CITY OF MIAMI BEACH, FLORIDA, APPROVING
A CONDITIONS OF EMPLOYMENT AGREEMENT
BETWEEN THE CITY OF MIAMI BEACH AND CITY
ATTORNEY JOSE SMITH AND AUTHORIZING THE
MAYOR AND CITY CLERK TO EXECUTE THE
AGREEMENT.
WHEREAS, on March 8, 2006, the Mayor and Commission appointed Jose Smith as City
Attorney of the City of Miami Beach (City) to be effective upon the retirement of City Attorney
Murray H. Dubbin; and
WHEREAS, it is the desire of the City to provide certain benefits and to establish certain
conditions of employment for Jose Smith in his capacity as City Attorney; and
WHEREAS, Jose Smith desires to accept the position of City Attorney pursuant to the terms
and conditions set forth in the attached Conditions of Employment Agreement, as such 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 approve the attached Conditions of Employment Agreement between the City and City
PASSED and ADOPTED this 11 th day of A
Attorney Jose Smith.
1fuJ PM~
CITY CLERK
Robert Parcher
MHD:lm
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
'ilt:/Db
Date
COMMISSION ITEM SUMMARY
Condensed Title:
Approving A Conditions Of Employment Agreement Between The City Of Miami Beach And City
Attorne Jose Smith.
Ke Intended Outcome Su orted:
Attract and maintain a quality workforce.
Issue:
Shall the City Commission approve the Conditions of Employment Agreement Between the City of
Miami Beach and Ci Attorne Jose Smith?
Item Summary/Recommendation:
As stated in Mayor Dermer's attached letter, at the March 8, 2006 City Commission Meeting, Murray H.
Dubbin, City Attorney, announced his intentions to retire effective on or about April 12, 2006. At the
same meeting a motion was made and unanimously approved recommending and endorsing Jose Smith
as the new City Attorney and authorized the Mayor and City Manager to negotiate the contract.
Attached for your perusal and approval is a resolution approving the Conditions of Employment
between the City of Miami Beach and Jose Smith as the City Attorney.
Advisory Board Recommendation:
I N/A
Financial Information:
Source of Amount Account Approved
Funds: 1
D 2
3
4
OBPI Total
Financial Impact Summary:
City Clerk's Office Legislative Tracking:
I R. Parcher
Si n-Offs:
Department Director
Assistant City Manager
City Manager
T:\AGENDA\2006Iapr11 06\Regular\City attorney appointment sum.doc
tD
~
MIAMI BEACH
AGENDA ITEM R1l-1
DATE ~-I'-o('
tD
MIAMI BEACH
City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33139, www.miamibeachfl.gov
COMMITTEE MEMORANDUM
TO:
Mayor David Dermer and Members of the City Commission
FROM:
Jorge M. Gonzalez, City ManagerJ f'-" ~
April 11, 2006 (J 0
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, APPROVING A CONDITIONS OF EMPLOYMENT
AGREEMENT BETWEEN THE CITY OF MIAMI BEACH AND CITY ATTORNEY
JOSE SMITH AND AUTHORIZING THE MAYOR AND CITY CLERK TO
EXECUTE THE AGREEMENT.
DATE:
SUBJECT:
ANALYSIS
As stated in Mayor Dermer's attached letter, at the March 8, 2006 City Commission Meeting,
Murray H. Dubbin, City Attorney, announced his intentions to retire effective on or about April
12, 2006. At the same meeting a motion was made and unanimously approved
recommending and endorsing Jose Smith as the new City Attorney and authorized the
Mayor and City Manager to negotiate the contract.
Attached for your perusal and approval is a resolution approving the Conditions of
Employment between the City of Miami Beach and Jose Smith as the City Attorney.
JMG/RP
T:\AGENDA\2006Iapr1106\Regular\City attorney appointment CM.doc
CITY OF MIAMI BEACH
1700 CONVENTION CENTER DRIVE
MIAMI BEACH, FLORIDA 33 I 39
DAVID DERMER
MAYOR
April 11 ,2006
At the March 8, 2006 City Commission Meeting Murray H. Dubbin, City Attorney,
announced his intentions to retire effective on or about April 12, 2006. At the same
meeting a motion was made and unanimously approved recommending and endorsing
Jose Smith as the new City Attorney and authorized myself and Jorge M. Gonzalez, City
Manager, to negotiate the contract.
The con act negotiations have been concluded. The attached Employment Agreement
i b i~ed for City Commission consideration and approval.
v Dermer
Mayor
City of Miami Beach
OD/REP
T:\AGENDA\2006\apr1106\Regular\City attorney employment agreement.doc
CONDITIONS OF EMPLOYMENT
Made and entered into this 11 th day of April, 2006 by and between the City of
Miami Beach, State of Florida, a municipal corporation, (City) and Jose Smith (City
Attorney), both of whom agree as follows:
WIT N E SSE T H:
WHEREAS, the City desires to obtain the services of Jose Smith as City
Attorney of the City of Miami Beach; and
WHEREAS, it is the desire of the City to provide certain benefits, establish
certain conditions of employment and to set working conditions of the City Attorney; and
WHEREAS, it is the desire of the City to (1) secure and retain the services of the
City Attorney and to provide inducement for the City Attorney to remain in such
employment, (2) to make possible full work productivity and provide future security, and
(3) to provide a just means for terminating the City Attorney's services at such time as
the City Attorney may be unable fully to discharge his duties due to age, or disability or
when the City or the City Attorney may otherwise desire to terminate employment; and
WHEREAS, the City Attorney desires to accept the position under the above
terms and conditions and such other terms and conditions as will promote his continuous
productivity and efficiency in the best interest of the City.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties agree as follows:
Section 1.
Duties
City hereby agrees for Jose Smith to serve as City Attorney and Jose Smith
hereby agrees to perform the functions and duties of City Attorney as specified in the
City Charter and the City Code of the City of Miami Beach, and to perform other legally
permissible and proper duties and functions as the City Commission shall from time to
time assign.
Section 2.
Term of Agreement, Renewal and Termination
A. The City Attorney agrees to remain in the exclusive employ of the City for
the period between April 11, 2006 and April 10, 2009, subject to the provisions of this
agreement.
B. At least 90 days but no earlier than 120 days prior to April 10, 2009,
unless this agreement has already ended pursuant to its provisions, the Commission shall
notify the City Attorney of its intention to enter into a new agreement, extend this
agreement for such term as the parties may agree or allow this agreement to expire.
Failure of the Commission to act shall be deemed a decision to allow this Agreement to
expire. In the event this Agreement is allowed to expire and the City Attorney is ready,
willing and able to continue in employment as City Attorney, the City agrees to provide
as a post contract benefit a continuation of his bi-weekly salary and benefits, as provided
herein, for the earlier period of three months from date of expiration of this contract, or at
such time he has commenced other employment.
C. Nothing in this Agreement shall prevent, limit or otherwise interfere with
the right of the City to terminate the services of the City Attorney at any time, subject
only to the provision set forth in Section 4, Paragraphs A and B ofthis Agreement.
D. Nothing in this Agreement shall prevent, limit or otherwise interfere with
the right of the City Attorney to resign at any time from his position with the City, subject
only to the provisions set forth in Section 4, Paragraph C, of this Agreement.
E. The City Attorney agrees to remain in the exclusive service of the City as
long as this Agreement remains in full force and effect, and neither to accept other
employment nor to become employed by any other employer.
The term of "Employed" shall not be construed to include occasional teaching, writing,
pro bono activities or consulting performed on time off, and such activities shall be
limited as pursuant to Section 8. The City Attorney shall close his private law practice
within sixty days.
Section 3.
Suspension
The City may suspend the City Attorney with full pay and benefits at any time
during the term ofthis Agreement, but only if
A. a majority of City Commissioners and the City Attorney agree; or
B. after a public hearing, a majority of City Commissioners vote to suspend
the City Attorney "for cause" provided, however, that the City Attorney shall have been
given written notice setting forth any charges at least ten (10) days prior to such hearing
by the City Commission on such charges.
Section 4.
Severance Pay
A. In the event the City Attorney is terminated by the City on or before April 10,
2009 and during such time that the City Attorney is willing and able to perform his duties
under this Agreement, then, in that event, City agrees to pay the City Attorney a lump
sum cash payment equal to twelve (12) months aggregate salary in effect at time of
termination, unless the City has notified the City Attorney of its intention to allow the
contract to expire pursuant to the provision of Section 2B above in which case that
provision shall govern.
However, notwithstanding the foregoing, that in the event the City Attorney is
terminated "for cause," as reasonably determined by the City, in accordance with the
procedures set forth in Section 3 B above, in its judgment, then in that event, City shall
have no obligation to pay the aggregate severance sum designated in this paragraph.
Cause will include fraud, dishonesty, conviction of a felony, failure or refusal to perform
the duties and responsibilities of the position, engaging in any act which is a violation of
any law protecting the rights of employees, or other similar actions.
THE ENFORCEABLE SEVERANCE PAY, WHEN APPLICABLE, SHALL
CONSTITUTE AGREED, STIPULATED AND LIQUIDATED DAMAGES AND
CONSTITUTE THE MAXIMUM AMOUNT OF FINANCIAL LIABILITY FOR
WHICH THE CITY MAY BE LIABLE IN THE EVENT OF A TERMINATION
AND/OR BREACH OF CONTRACT. THIS PROVISION SHALL NOT LIMIT
BENEFITS SPECIFICALLY ENUMERATED IN OTHER PROVISIONS OF THIS
CONTRACT.
B. In the event the City at any time during the term of this Agreement
reduces the salary or other financial benefits of the City Attorney in a greater percentage
than an applicable across-the-board reduction for all employees of City, or in the event
the City refuses, following written notice, to comply with any other provision benefiting
the City Attorney herein, or the City Attorney resigns following a suggestion, whether
formal or informal, by the City that he resign, then, in that event, the City Attorney may,
at his option, be deemed to be "terminated" at the date of such reduction or such refusal
to comply within the meaning and context of the severance pay provision.
C. In the event the City Attorney voluntarily resigns his position with the
City, then the City Attorney shall give the City 30 days notice in advance, and the City
Attorney shall have no right to collect severance pay unless the parties otherwise agree.
Section 5.
Disability
If the City Attorney is permanently disabled or is otherwise unable to perform his
duties because of sickness, accident, injury, mental incapacity or health for a period of
four successive weeks beyond any accrued sick leave, or for twenty working days over a
thirty working day period, the City shall have the option to terminate this Agreement,
subject to the severance pay requirements established in Section 4 Paragraph A of this
Agreement. The City at its option may buy a disability insurance policy to fulfill the
requirements of this provision. Notwithstanding the foregoing, the City Attorney shall be
compensated for any accrued sick leave, vacation, holidays, compensatory time and other
accrued benefits.
Section 6.
Salary
A. The City agrees to pay the City Attorney for services rendered pursuant
hereto an annual salary of One Hundred Eighty Five Thousand Dollars ($185,000.00)
payable in installments at the same time as other employees of the City are paid.
B. The City agrees to review the annual salary and/or other benefits of the
City Attorney at the time of evaluation of performance as provided in section 7 A and
make adjustments in such amounts and to such extent as the City may determine that it is
desirable to do so. An annual salary review of the City Attorney shall be made every
year within 30 days after April!! of each year.
Section 7.
Performance Evaluation
A. The City shall review and evaluate the performance of the City Attorney at
least once annually as set forth in 6B. The review and evaluation shall be in accordance
with the specific criteria developed jointly by the City and City Attorney. Further, the
Mayor shall provide the City Attorney with a summary written statement of the findings
of the City Commission and provide an adequate opportunity for the City Attorney to
discuss his evaluation with the City Commission.
B. In effecting the provisions of this Section, the City Commission and the
City Attorney mutually agree to abide by the provisions of applicable law.
Section 8.
Outside Activities
Subject to the provisions of Section 2 above, the City Attorney may not spend more than
five (5) hours per week in teaching or other non-City connected business without the
prior approval ofthe City.
Section 9.
Automobile
The City Attorney's duties require having the exclusive and unrestricted use at all
times during employment of an automobile. The City shall be responsible for providing
for liability, property damage and comprehensive insurance and for the purchase,
operation, maintenance, repair and regular replacement of the automobile.
Section 10. Vacation and Sick Leave
A. The City Attorney shall be entitled to accrued vacation, sick and other
City permitted leave in the same manner as other general unclassified employees of the
City.
B. The City Attorney shall be granted a beginning allocation of forty (40)
hours of Annual leave and forty (40) hours of Sick leave as his initial time banle
Section 11. Health, Life and Other Insurance
A. The City agrees to put into effect for the City Attorney insurance policies
for life, accident, dental, sickness, major medical and dependents' coverage group
insurance covering the City Attorney and dependents as is provided to other employees
ofthe City.
B. City agrees to purchase term life insurance policies for the City Attorney.
The City shall pay the premium on the amount equal to the annual salary and the City
Attorney shall pay any premium on any balance of the policy.
C. City agrees to provide hospitalization, surgical and comprehensive
medical, dental and vision insurance for the City Attorney and dependents and to pay the
premiums thereon, or in the event no such plan exists, to provide same..
Section 12. Retirement
A. The City Attorney will be part of the Miami Beach Employees'
Retirement System.
B. The City agrees to deposit the maximum amount allowable by law
(currently $15,000) into a deferred compensation program with the. International City
Management Association Retirement Corporation or such other deferred compensation,
individual retirement account (IRA), or any other legal deferred compensation or
retirement type of tax sheltered annuity program as may be designated by the City
Attorney and as are legal under Federal Laws or laws of the State of Florida.
Section 13. Dues and Subscriptions
City agrees to budget and to pay for the professional dues and subscriptions of the
City Attorney necessary for his continuation and full participation in national, regional,
state and local associations and organizations necessary and desirable for the City
Attorney's continued professional participation, growth and advancement, and for the
good ofthe City.
Section 14. Professional Development
A. The City hereby agrees to budget for and to pay the travel and subsistence
expense of the City Attorney for professional and official travel, meetings and occasions
adequate to continue the professional development of the City Attorney and to adequately
pursue necessary official and other functions for the City.
B. The City also agrees to budget for and to pay for the travel and subsistence
expenses of the City Attorney for those courses, institutes and seminars that are necessary
for professional development and/or for the good of the City Attorney.
Section 15. General Expenses
The City recognizes that certain expenses of a non-personal and generally job-
affiliated nature are incurred by the City Attorney and hereby agrees to reimburse or to
pay such general expenses appropriate to the position of City Attorney and the Finance
Director is hereby authorized to disburse such monies upon receipt of duly executed
expense or petty cash vouchers, receipts, statements or personal affidavits. There shall be
an annual review of those expenses by the City's outside auditor.
Section 16. Organization Membership
The City recognizes the desirability of representation in and before local civic,
social, and other organizations, and the City Attorney is authorized to become a member
of such civic clubs or organizations, for which the City shall pay all job related expenses.
No civic club or organization authorized hereunder may engage in discrimination as to
race, sex, sexual preference, color, creed, national origin or disabilities.
It is the continuing responsibility of the City Attorney before becoming a member
of such civic club or organization to verify that there is no discrimination regarding any
use, service, maintenance, membership or operation of the civic club or organization.
MEMBERSHIP IN ANY COUNTRY CLUB IS SPECIFICALLY EXCLUDED
FROM THIS SECTION AND THE CITY SHALL NOT PAY FOR ANY COUNTRY
CLUB MEMBERSHIP, UNLESS AUTHORIZED BY A MAJORITY VOTE OF THE
CITY COMMISSION AND UNLESS SAID MEMBERSHIP IS SPECIFICALLY JOB
RELATED.
Section 17. Indemnification
The City shall defend, save harmless and indemnify the City Attorney against any
tort, professional liability claim or demand or other legal action, whether groundless or
otherwise, arising out of an alleged act or omission occurring in the performance of the
City Attorney's duties. If required, the City will compromise and settle any such claim or
suit and pay the amount of any settlement or judgment rendered thereon. This provision
includes the right to legal counsel provided for by the City.
Section 18. Bonding
The City shall bear the full cost and any fidelity or other bonds required of the
City Attorney under any law or ordinance.
Section 19. Other Terms and Conditions of Employment
A. The City Commission, in consultation with the City Attorney shall fix any
such other terms and conditions of employment, as it may determine from time to time,
relating to the performance of the City Attorney, provided such terms and conditions are
not inconsistent with or in conflict with the provisions of this Agreement, the City
Charter or any other law.
B. All provisions of the City Charter and Code, and regulations and rules of
the City relating to vacation and sick leave, holidays and other fringe benefits and
working conditions as they now exist or hereafter may be amended, also shall apply to
the City Attorney as they would to other employees of the city in addition to said benefits
enumerated specifically for the benefit ofthe City Attorney except as herein provided.
C. The City Attorney shall be entitled to receive the same vacation and sick
leave benefits as are accorded department heads, including provisions governing payment
therefor on termination of employment.
Section 20. No Reduction of Benefits
The City shall not at any time during the term of this Agreement reduce the
salary, compensation or other financial benefits of the City Attorney, except to the degree
of such a reduction across-the-board for all similarly situated unclassified employees of
the City.
Section 21. Computer/Equipment
The City shall pay for all equipment, systems software, and portable
communications equipment necessary for the City Attorney. This will include a computer
system at his residence which is for the sole purpose of performing City business during
non-office hours.
Section 22. Notices
Notices pursuant to this Agreement shall be given by deposit in the custody of the
United States Postal Service, postage prepaid, addressed as follows:
(1) City:
Mayor
City of Miami Beach
1700 Convention Center Drive
Miami Beach, FL 33139
Jorge M. Gonzalez
City Manager
1700 Convention Center Drive
Miami Beach, FL 33139
(2) City Attorney: Jose Smith
City Attorney
1700 Convention Center Drive
Miami Beach, FL 33139
Alternatively, notices required pursuant to this Agreement may be personally
served in the same manner as is applicable to civil judicial practice. Notice shall be
deemed given as of the date of personal service or as of the date of deposit of such
written notice in the course of transmission in the United States Postal Service.
Section 23. General Provisions
A. The text herein shall constitute the entire Agreement between the parties.
B. This Agreement shall be binding upon and inure to the benefit of the heirs
at law and personal representatives of the City Attorney.
C. This Agreement shall become effective commencing April 11, 2006.
D. If any provision, or any portion thereof, contained in this Agreement is
held unconstitutional, invalid or unenforceable, the remainder of this Agreement, or
portion thereof, shall be deemed severable, shall not be effected and shall remain in full
force and effect.
E. Any controversy or claim arising out of or relating to this Agreement, or
the breach hereof, shall be settled by arbitration in accordance with the Commercial
Arbitration Rules of the American Arbitration Association, and the arbitration award
shall be final and binding upon the parties hereto and subject to no appeal, and shall deal
with the question of the costs of arbitration and all matters related thereto. In that regard,
the parties shall mutually select one arbitrator, but to the extent the parties cannot agree
upon the arbitrator, then the American Arbitration Association shall appoint one.
Judgment upon the award rendered may be entered into any court having jurisdiction, or
application may be made to such court for an order of enforcement.
F. No alteration, modification or amendment of this Contract shall be
effective unless contained in writing, executed between the parties in a document of equal
dignity with this Contract.
G. The parties agree that any litigation or arbitration involving this Contract
shall take place in the Eleventh Judicial Circuit in and for Dade County, Florida, or if in
Federal Court, the Court for the Southern District of Florida.
~ WITNESS WHEREOF, the City of Miami Beach has caused this Agreement
to be sigtlFd nd executed in its behalf by its Mayor, and duly attested by its City Clerk,
and Jose S th has signed and executed this Agreement, both in duplicate, the day and
year first a ,~1 fritten.
! i ./
\/
Davnf Dermer, Mayor
City of Miami Beach, State of Florida
Attest:
~o fMdu--
City Clerk
Robert Parcher
APPROVED ~ TO
fORM & lANGUAGE
& FOR EXECUTION
1'" 5-o{,
Date
tD
MIAMI BEAC
OFFICE OF THE CITY CLERK
State of Florida
County of Miami-Dade
I, Jose Smith, a citizen of the State of Florida and of the United States of America,
and being employed by or an officer of the City of Miami Beach and a recipient of
public funds as such employee or officer, do hereby solemnly swear or affirm that I
will support the Constitution of the United States and of the State of Florida; and that I
will well and faithfully perform the duties of City Attorney of the City of Miami Beach.
Sworn to and subscribed before me this 11 th day of April, 2006
mw~ PlUck
Robert Parcher
City Clerk
F:\CLER\ClER\OATH\Oath Jose Smith.doc
~~r .'1
7 "'. f'.. -......
U..l... ~".r ," i ......i-It.... ^'.
f J /. "/"., l' ,
: ., " ..{ :..,o! ...
..... 46. ,; ..it
· Ii . '~,,: .~