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HomeMy WebLinkAboutItem #13 Approval of New Employment Agreement for City Manager AGENDA ITEM COVER SHEET Meeting Date: 9/04/07 Item # 13 Contact Name: Contact Number: James Carnicella 1032 Reviewed By: ' Department Director: ( City Manager: Background Summary: The City Manager is covered by an employment agreement with the City of Ocoee which provides for yearly salary increases as the City Commission authorizes. The Commission conducted a workshop on July 10, 2007 to evaluate the City Manager's performance and considered amending his employment agreement. The City Manager has reviewed his contract and has considered the issues that were raised during his review. The City Manager's current contract expires September 30,2007. Issue: Should the City Commission amend/enter into a new agreement with the City Manager effective October 1, 20077 Recommendations Approve the attached contract agreement with the City Manager to be effective October 1, 2007. The new agreement replaces and amends the term, the salary and other benefits from the previous agreement and amendments. Attachments: A new contract proposed by the City Manager. Financial Impact: The cost of the salary increase of 4% is budgeted in the fiscal year 07-08 budget. Type of Item: o Public Hearing o Ordinance First Reading o Ordinance First Reading o Resolution [gI Commission Approval o Discussion & Direction For Clerk's DeDt Use: o Consent Agenda o Public Hearing o Regular Agenda D Original Document/Contract Attached for Execution by City Clerk D Original Document/Contract Held by Department for Execution Reviewed by City Attorney Reviewed by Finance Dept. Reviewed by ( ) o N/A o N/A o N/A EMPLOYMENT AGREEMENT This Employment Agreement ("Agreement") is made and entered into as of the 1 st day of October, 2007 by and between the CITY OF OCOEE (hereafter referred to as the "City"), a municipal organization organized and existing under the laws of the State of Florida, with its office located at City Hall, Ocoee, Florida and ROBERT D. FRANK (hereinafter referred to as the "Employee"). NOW THEREFORE, in consideration for the mutual covenants contained herein, the parties agree as follows: 1. Emplovment and Duties: A. Emplovment Duties: The City hereby agrees to employ Employee as City Manager and Employee agrees to accept such employment, all subject to the terms and conditions set forth in this Agreement. Unless otherwise provided herein, the Employee shall devote his full time as City Manager and carry out to the best of his ability all duties imposed on him by the City Charter, City Ordinances as they now exist, or from time to time may be changed by the City of Ocoee, and such other duties as the City Commission may from time to time require him. Employee will be in active charge of the management and operation of the City, including the hiring, supervision, evaluation and discipline of all City employees subject to the applicable laws of the United States, the State of Florida, and Charter and Ordinances of the City now in existence or as subsequently adopted, altered or amended by the City. B. Individual Commission Members: Individual members of the City Commission shall not involve themselves in the day-to-day management of the City, including the administration of the employment policies of the City relating to hiring, evaluation, discipline, retention and supervision, unless otherwise specifically provided herein, or as specifically provided in the City Charter or Ordinances now in existence or as may be subsequently altered, adopted or amended; provided, however the City Manager, shall keep the City Commission advised of all disciplinary actions more severe than a suspension without pay and all terminations of City employees which are involuntary, except termination of probationary employees. The City Manager shall also advise the City Commission of any and all demands for arbitration, administrative charges or litigation and keep the City Commission updated as to the status of same. Subject to the City Charter, ordinances and regulations, the City Commission shall retain the sole and exclusive right to determine whether to settle (including the terms of any settlement) or contest any and all claims, or threatened claims involving the City and employees acting within the scope of their authority as City employees, including those claims related to the City personnel rules and regulations, except when by official action the City Commission determines otherwise, or the law otherwise provides, or except where otherwise provided in the Purchasing Rules and Regulations. 2. Term: A. The term of employment under this Agreement will commence October 1, 2007 and continue until terminated by either party as provided in paragraph 7 below. ORLA_581511.2 DRAFT 08/15/07 3. Compensation & Benefits: A. The City will pay Employee for all services rendered and performed hereunder, a base salary, effective October 2,2007, of One Hundred Thirty Six Thousand Fifty- Two and 68/100 Dollars ($136,052.68) per annum, in equal installments paid bi-weekly (26 pay periods per annum), or as otherwise mutually agreed; provided, however, that unless otherwise agreed to by the City and Employee, as of October 1 of each year the Employee's base salary shall automatically increase based on cost of living increases (COLA's) and merit increases, if any, uniformly provided by the City to Department Directors of the City. B. Employee's job performance may be reviewed and evaluated by the City Commission periodically under this Agreement and discussed with Employee by the City Commission or its designee. C. Any increases in Employee's base salary beyond those set forth in Paragraph 3A above shall be negotiated by the City Commission, or its designee and the Employee. Any salary increase for Employee must be approved by the City Commission, but does not require a formal amendment to this Agreement; provided, however, that the COLA and merit increases referenced in Paragraph 3A above shall not require any specific approval by the City Commission. D. Effective July 11, 2009, the Employee shall, at no cost to the Employee, be provided 5 years creditable service time in the City of Ocoee General Employees Pension Plan and be considered as "vested" and shall thereafter during the term of this Agreement contribute 7.4% of his annual base salary to such pension plan in the same manner as other employees. City Commission agrees to adopt and move forward with any necessary enabling ordinances or resolutions to implement this provision, subject to compliance with all applicable laws and regulations. 4. Frine:e Benefits: A. (1) Employee shall be eligible for and participate in all fringe benefits uniformly provided to Department Directors of the City on the same basis and under the same conditions as provided to said employees; provided, however, Employee shall accrue paid time off (PTO) under the City Personnel Rules and Regulations in the same manner as if he had six (6) years of continuous full-time service as an employee of the City. (2) Employee shall receive five (5) days per year of administrative leave in the same manner provided to "at will" employees of the City. (3) Employee shall be eligible for life insurance at two (2) times his annual salary. B. Vehicle: 1. Employer agrees to pay to the employee, during the term of this Agreement and in addition to other salary and benefits provided, the sum of $700.00 per month as a vehicle allowance to be used to purchase, lease or own, maintain and operate a vehicle. 2 ORLA_581511.2 Employee shall be responsible for liability, property damage and comprehensive insurance coverage upon such vehicle and shall be further responsible for all expenses attendant to said vehicle. Employer shall reimburse Employee at the IRS standard mileage rate for any business use beyond the Florida League of Cities Tri-County area. 2. At the Employee's option and in lieu of the vehicle allowance provided in Paragraph 4.B(I) above, the Employer shall lease or lease/purchase a vehicle for the exclusive use by the Employee and provide up to $600.00 per month for such lease, plus fuel, maintenance and insurance costs. If Employee elects this option, the election will continue for the term of the lease after which the Employee may elect the vehicle allowances set forth in Paragraph 4.B above or a lease of a new vehicle. Vehicle usage is authorized for business and personal use within the State of Florida. The vehicle shall be considered property of the City. If the City provides a vehicle to the Employee, then the Employee will immediately report to the Mayor and Human Resources Director any accident in which the City vehicle is involved while being used by Employee. 3. Employee shall assure that the vehicle for his use in conducting City business is kept in clean and presentable condition at all times. C. Equipment: The City will furnish Employee a cellular telephone and a personal digital assistant (PDA) to be used exclusively for City business. Use of the PDA shall be subject to the same guidelines applicable to members of the City Commission. All records for the City-provided cell phone are City records. D. Dues and Subscriptions: Subject to presentation of proper receipts or invoices and the appropriation of funds as part of the City's annual budget, City agrees to pay for the professional dues and subscriptions reasonably necessary for Employee's continuation and full participation in national, regional, state and local associations and organizations which Employee determines are necessary and desirable for his continued professional participation, growth and advancement, and for the good of the City. Additionally, the City shall pay for other memberships and subscriptions on behalf of the Employee, which the City Commission, in its exclusive discretion, approves in advance. E. Conventions: (1) City hereby agrees to budget and to pay the registration fees, travel and subsistence consistent with subparagraph 4(E)(3) below for attendance by Employee as a member in good standing to the annual meeting or convention of the International City Management Association, the Florida League of Cities, Florida City and County Manager's Association and the National League of Cities. (2) Additionally, the City shall pay for all other meetings, seminars and short courses attended by the Employee, which the City Commission, in its exclusive discretion, approves in advance. If attendance at such functions requires overnight travel and expense, the Employee shall be reimbursed in accordance with City policy. (3) All other expenses shall be reimbursed in accordance with the City policy applicable to all employees. 3 ORLA_581511.2 F. Deferred Compensation: In addition to the base salary paid to the Employee, the City agrees, during the term of this Agreement, to contribute annually ten and ninety-five hundredths percent (10.95%) of the base salary of Employee, up to the maximum allowed, into a deferred compensation plan on Employee's behalf, such plan to be designated by Employee, with such contributions being in equal proportionate amounts each pay period. Between October 1, 2007 and July 10, 2009 only, the deferred compensation payments made hereunder are made in lieu of Employee's participation in the City of Ocoee General Employees Pension Plan, which he voluntarily elects not to participate in until July 11, 2009. The City agrees while Employee is employed by the City to execute all necessary agreements in connections with any such deferred compensation plan in order to allow for Employee's continued participation therein. Participation by the Employee in the City of Ocoee General Employees Pension Plan shall not affect the obligation of the City under this subparagraph. 5. Extent of Services and Hours of Work: A. Except during periods of illness, vacation, or absences of a day or more authorized by the Mayor, or his designee, Employee will devote his best efforts to the performance of his duties and responsibilities under this Agreement. Nothing herein will limit Employee's right to make passive investments, to participate in charitable service and organizations, other community activities and trade and professional organizations or to undertake other activities which do not interfere with the performance of his duties hereunder, it being mutually agreed that his participation in charitable service, other community activities, and trade and professional organizations is to the benefit of the City. Employee shall not otherwise be employed on a full or part-time basis without the written permission of the City Commission with the exception of his continued participation as a reserve deputy sheriff in order to maintain his Florida certification credentials; provided his participation does not interfere with his duties under this Agreement as determined by the City Commission. B. Employee shall be "on-call" 24 hours a day and agree to make himself available as needed, however he may take advantage of any alternative work schedule offered to other employees. It is recognized that Employee's duties as City Manager require a great deal of time outside of normal office hours. It is also recognized that Employee is required to devote an unspecified amount of time and energy to carry out those duties with the highest amount of professionalism possible and that because of the "24 hour" nature of his responsibilities, interference with his private life is to be expected. That being the case, the parties recognize that Employee may choose to take occasional casual time off within the general area of the City of Ocoee during the City's normal business hours when his duties allow and his absence will not interfere with the efficient operation of City business; provided, however, that he is at all times immediately available by telephone or beeper, except during periods of illness, vacation and absences approved by the Mayor or his designee. This casual time off is not considered as PTO or administrative leave. Employee agrees that, at all times, he will conduct himself in a professional manner and not bring discredit to the City or to the operation of its business. The Commission may consider Employee's use of such casual time off during its periodic performance evaluations of him. 6. Indemnification and Cooperation: 4 ORLA_581511.2 A. The City shall defend, hold harmless and indemnify Employee against any tort, professional liability claim or demand or other legal action for which the City is legally responsible for actions of Employee acting in his capacity as the City Manager and which are within the scope of his authority and employment as City Manager, subject to applicable law and the City Charter and Ordinances, and any limitations contained therein. B. In the event of actual or threatened litigation and/or administrative proceedings involving the City which arise out of the operation or actions which occurred or are alleged to have occurred while Employee was the City Manager of the City of Ocoee, Employee will cooperate with the City and its counsel in assisting the City in every legal manner to prevail in said action. The City shall pay Employee's reasonable travel expenses and subsistence expenses incurred away from his home incurred in preparation for and actual discovery, settlement and trial of all said matters. C. Employee further agrees that unless required by law, he will not cooperate with or assist any party, person, or entity who has, had or may have, or asserts that he has or may have any claim or any nature against the City, its agents, officers, employees, City Commission members or representatives, without the express written permission of the City Commission, or its designee. D. Employee shall not disclose any confidential or private information involving the business of the City to any person or entity without the written permission of the City Commission, or its designee, unless required to do so by law. E. Restrictions set forth in subparagraphs C and D above shall not apply in instances of governmental entities with jurisdiction over a claim of a violation of law. 7. Termination: A. Termination by Employee: The Employee may resign and terminate this Agreement upon thirty (30) days written notice to the City. Should Employee resign his employment and terminate this Agreement: 1. Employee shall receive no severance payor benefits under this Agreement, except as may be otherwise provided in the City Personnel Rules and Regulations applicable to him ifhe resigns his employment. 2. This Agreement (except for Paragraph 6 which shall remain in force and effect for as 10ng as the law allows) shall be automatically canceled, and except as to those paragraphs that continue in effect, neither Employee nor the City shall have any further obligation one to the other under this Agreement or otherwise. B. Termination by the City: 1. Subject to the procedures set forth in Article N, C-22 of the City Charter, the Employee and this Agreement may be terminated at any time, with or without cause, at the will and pleasure of the City Commission. 5 ORLA_581511.2 2. Except as provided in Paragraph 7B(3) below, and subject to subparagraphs 7B(2) (c) and (d) below, if Employee is terminated he shall be paid severance pay under the conditions set forth in subparagraphs 7B(2)(a) - (h) below. A vote by a majority of the City Commission to offer Employee the opportunity to voluntarily resign in lieu of termination, shall be considered a termination under and subject to the conditions set forth in this subparagraph 7B(2) below: (a) The Employee shall receive severance pay equal to twelve (12) months base salary if terminated; provided, however, there shall be no severance pay due in cases of termination consistent with Paragraph 7B(3), or termination by the Employee. (b) City shall continue to pay for the premium necessary to provide Employee group medical insurance for a period of 12 months from the date of the Employee's termination under paragraph 7B, just as if he had remained actively employed during such period, but subject to the conditions set forth in subparagraph 7B(2)(d) and 7B(3) below. (c) Employee shall comply with paragraphs 6B through 6D of this Agreement (Confidentiality and Cooperation) following termination of this Agreement. (d) The City shall no longer be obligated to pay the premiums for Employee's group medical insurance under subparagraph 7B(2)(b) above once Employee has obtained employment with another employer who offers group medical insurance for which Employee meets that employer's eligibility requirements (and assuming any waiting periods have passed) or after 12 months from the date of the Employee's termination under paragraph 7B, whichever first occurs. (e) Upon termination of this Agreement, neither Employee nor the City shall have any obligation one to the other except (i) as set forth in Paragraph 6, (ii) for accrued benefits, if any, to which Employee is entitled, if any, under the City Personnel Rules and Regulations applicable to him as a terminated Employee, or (iii) as otherwise provided in this Agreement. (t) Employee shall execute a release of all officers, directors, members, City Commission members, employees and representatives of any and all rights he has, had or may have arising out of his employment or the cessation thereof under this Agreement and all applicable federal, state and local laws, including but not limited to claims of illegal discrimination, intentional and unintentional torts and all other types of claims whether known or unknown through the date of his termination. (g) In the event the form of government of the City is changed to a "strong Mayor" or similar form of government for which there is no City Manager, Employee may elect to voluntarily resign, in which event said resignation shall be treated as termination under paragraph 7B and shall be subject to all of the subparagraphs set forth therein; provided, however, unless released by the City, the Employee agrees to remain actively employed for thirty (30) days after the "strong Mayor" or other chief executive officer under a similar form of government takes office and during that time assist in the transition. 6 ORLA_581511.2 (h) In the event Employee is entitled to severance pay from the City, the City shall in addition to the severance pay, pay Employee the amount of premium the City would have paid for employee life insurance and disability insurance had he remained employed during the time period for which severance pay is provided. 3. The City shall have no obligation to pay any severance payor to provide Employee group medical insurance under paragraph 7B(2) hereunder unless otherwise required by law if Employee is terminated for any or a combination of the following: (a) Dishonesty with respect to the business and operation of the City. (b) Violation of the City drug policy. (c) Refusal to cooperate in a legal investigation involving any aspect of the business or operation of the City conducted by or at the direction of the City Commission. (d) Conviction or pleading guilty nolo contendre to a felony. (e) Causing the City to be found in violation of law through gross neglect or willful or intentional conduct by Employee. Except as may otherwise be required by the City Charter, in the event Employee is charged with a felony or crime involving moral turpitude, the City shall have no obligation to pay Employee under paragraph 7B(2) unless and until a judgment of acquittal is entered by the Court. 8. Notice and Consent: Any written or other notice required by this Agreement shall be deemed delivered as follows: A. As to the City, when delivered by personal service to the City Clerk at the City Hall during the regular business hours of the City, or by Certified or Registered mail to the City Clerk at the City Hall, said delivery to be verified by an executed Certified or Registered mail receipt, signed by the City Clerk or the City Clerk's designee. B. As to Employee, by personal service to him or via Certified or Registered mail to him at the most recent mailing address set forth in the City's personnel records. 9. Miscellaneous: A. The City Personnel Rules and Regulations as they now exist or as they may be later modified by the City shall apply to Employee except: 1. When inconsistent with this Agreement or the City Charter. 7 ORLA_581511.2 2. Section 12.09 Longevity Pay, Section 15 (Disciplinary Action/Termination) and 16 (Grievance Procedure), shall not apply to Employee. B. The Mayor, or his designee, shall be the Commission Member with whom Employee shall coordinate contact between the City Commission and his office with respect to off duty time. c. The Employee shall not be required to move into the City. D. This Agreement shall be interpreted, construed and governed according to the laws of the State of Florida. In the event of litigation to enforce this Agreement, the prevailing party shall be entitled a reasonable attorney's fees and costs in addition to any other relief to which the prevailing party is entitled in accordance with applicable law. E. No amendment or variation of the terms and conditions of this Agreement shall be valid unless in writing and signed by the parties. F. The Employee's rights and obligations under this Agreement are personal and are not assignable; provided, however, in the event of Employee's death any accumulated but unused benefits to which an Employee's heirs and executors are entitled under the City Personnel Rules and Regulations shall inure to the benefits of Employee's heirs and executors to the same extent as all other City Employees. Severance payments under Paragraph 7(B)(2) shall not be applicable in the event of the Employee's death. G. The invalidity or unenforceability of any particular proVision of this Agreement shall not affect the other provisions hereof, and this Agreement shall be construed in all respects as if such invalid or unenforceable provisions were omitted. H. This Agreement supersedes any and all other understandings or agreements, whether written or oral, and constitutes the complete and full agreement between the parties, and may be modified only by the written agreement of Employee and the City Commission. IN WITNESS WHEREOF, the parties hereto have set their hands and seals as of the day and year first above written. CITY OF OCOEE, FLORIDA ROBERT D. FRANK, Employee By: S. Scott Vandergrift, Mayor Date: Attest: Beth Eikenberry, City Clerk 8 ORLA_581511.2 FOR USE AND RELIANCE ONLY BY THE CITY OF OCOEE, FLORIDA; APPROVED AS TO FORM AND LEGALITY this _day of September, 2007. FOLEY & LARDNER LLP By: Paul E. Rosenthal, City Attorney ORLA_581511.2 APPROVED BY THE OCOEE CITY COMMISSION AT A MEETING HELD ON SEPTEMBER _,2007 UNDER AGENDA ITEM NO. 9 Document comparison done by Workshare DeltaView on Wednesday, August 15, 2007 7:44:16 PM I "Rut:';;' '!Ii interwovenSite://ORLDMS1 /ORLA/581521 /1 AGREEMENT WITH CITY MANAGER interwovenSite://ORLDMS 1 /ORLA/581511 /2 DRAFT OF NEW AGREEMENT PROPOSED BY CITY MANAGER standard Document 1 Document 2 Renderin set EMPLOYMENT AGREEMENT This Employment Agreement ("Agreement") is made and entered into as of the Ulst day of J..\meOctober, ;wG42007 by and between the CITY OF OCOEE (hereinufterhereafter referred to as the ':'~City"), a municipal organization organized and existing under the laws of the State of Florida, with its office located at City Hall, Ocoee, Florida and ROBERT D. FRANK (hereinafter referred to as the "Employee"). NOW THEREFORE, in consideration for the mutual covenants contained herein, the parties agree as follows: 1. Employment and Duties: A. Employment Duties: The City hereby agrees to employ Employee as City Manager and Employee agrees to accept such employment, all subject to the terms and conditions set forth in this Agreement. Unless otherwise provided herein, the Employee shall devote his full time as City Manager and carry out to the best of his ability all duties imposed on him by the City Charter, City Ordinances as they now exist, or from time to time may be changed by the City of Ocoee, and such other duties as the City Commission may from time to time require ef-him. Employee will be in active charge of the management and operation of the City, including the hiring, supervision, evaluation and discipline of all City employees subject to the applicable laws of the United States, the State of Florida, and Charter and Ordinances of the City now in existence or as subsequently adopted, altered or amended by the City. B. Individual Commission Members";"~ Individual members of the City Commission shall not involve themselves in the day-to-day management of the City, including the administration of the employment policies of the City relating to hiring, evaluation, discipline, retention and supervision, unless otherwise specifically provided herein, or as specifically provided -l-nin the City Charter or Ordinances now in existence or as may be subsequently altered, adopted or amended; provided, however, the City Manager, shall keep the City Commission advised of all disciplinary actions more severe than a suspension without pay and all terminations of City employees which are involuntary, except termination of probationary employees. The City Manager shall also advise the City Commission of any and all demands for arbitration, administrative charges or litigation and keep the City Commission updated as to the status of same. Subject to the City churterCharter, ordinances and regulations, the City Commission shall retain the sole and exclusive right to determine whether to settle (including the terms of any settlement) or contest any and all claims, or threatened claims involving the City, and employees acting within the scope of their authority as City employees, including those claims related to the City personnel rules and regulations, except when by official action, the ORLA_581521.15815112 ORLA_585470.1 City Commission determines otherwise, or the law otherwise provides. or exceot where otherwise nrovided in the Purchasing: Rules and Reg:ulations. 2. Term: A. The term of employment under this Agreement will commence July 12, 2001 and end September 30, 2005, unless earlierOctober 1. 2007 and continue until terminated by either party as provided in paragraph 7 below. B. The City Commission will make reasonable efforts to advise the Employee in writing on or before July 31, 2005, if it intends not to renew this Agreement unless earlier terminated in accordance with paragraph 7 belo\v. Failure to notify vii thin said time shall not act as a renewal or extension of this "^.greement. 3. Compensation & Benefits: A. The City will pay Employee for all services rendered and performed hereunder, a base salary of one hundred seven thousand five hundred dollars ($l07,500.00,; effective October 2. 2007. of One Hundred Thirty Six Thousand Fifty-Two and 68/100 Dollars ($136.052.68) per annum, in equal installments paid bi-weekly (26 pay periods per annum), or as otherwise mutually agreed; provided, however, that unless otherwise agreed to by the City and Employee, in the event this i\greement is extended beyond September 30, 2005,as of October 1 of each year the Employee's base salary shall automatically increase based on cost of living increases (COLA's) and merit increases, if any, uniformly provided by the City to Department Directors of the City on the same basis and under the same conditions provided to said Department Directors. B. Employee's job performance wHtmay be reviewed and evaluated annually by the City Commission prior to Employee's anniversary date of employmentoeriodically under this Agreement and shall be discussed with Employee by the City Commission or its designee. Other re':iev/s may be conducted at the discretion of the City Commission. C. lncreasesAny increases in Employee's base salary, beyond those set forth in Parag:raoh 3A above shall be negotiated by the City Commission, or its designee, and the Employee. Any salary increase for Employee must be approved by the City Commission, but does not require a formal amendment to this Agreement; provided, however, that the COLA and merit increases referenced in subparagraph Parag:raoh 3A above shall not require any specific approval by the City Commission. Jb Effective July 11. 2009. the Emoloyee shall. at no cost to the Emolovee. be orovided 5 years creditable service time in the City of Ocoee General Emoloyees Pension Plan and be considered as "vested" and shall thereafter during: the term of this Ag:reement contribute 7.4% of his annual base salary to such oension ulan in the same manner as other emoloyees. City Commission ag:rees to adoot and move forward with any necessary enabling: ordinances or resolutions to imolement this provision. subiect to comoliance with all auolicable laws and reg:ulations. 4. Frin2:e Benefits: 2 ORLA_5g1521.15815112 ORLA_585470.1 A. (1) Employee shall be eligible for and participate in all fringe benefits uniformly provided to Department Directors of the City on the same basis and under the same conditions as provided to said employees; provided, however beginning July 12, 2001~ Employee shall accrue paid leiwetime off (PTO) under the City Personnel Rules and Regulations j-Hstin the same manner as ifhe had fi-vesix (~~) years of continuous full-time service as an employee of the City. (2) Employee shall receive five (5) days per year of administrative leave in the same manner provided to "at will" employees ofthe City. (3) Employee shall be eligible for life insurance at two (2) times his annual salary as outlined in the current insurance contract, up to a maximum of $l75,000; pro';ided he is determined to be insurable by an insurance currier selected by the City. B. Vehicle: 1. Employer agrees to pay to the employee, during the term of this Agreement and in addition to other salary and benefits provided, the sum of $700.00 per month as a vehicle allowance to be used to purchase, lease or own, maintain and operate a vehicle. Employee shall be responsible for liability, property damage and comprehensive insurance coverage upon such vehicle and shall be further be-responsible for all expenses attendant to said vehicle. Employee shall provide insurance for said vehicle as required by the City. Employer shall reimburse Employee at the IRS standard mileage rate for any business use beyond the Florida League of Cities Tri-County area. 2. Employee shallAt the Employee's option and in lieu of the vehicle allowance provided in Parallraph 4.BO) above, the Employer shall lease or lease/purchase a vehicle for the exclusive use bv the Employee and nrovide UP to $600.00 per month for such lease, plus fuel. maintenance and insurance costs. If Employee elects this option, the election will continue for the term of the lease after which the Employee may elect the vehicle allowances set forth in Parallraph 4.B above or a lease of a new vehicle. Vehicle usalle is authorized for business and personal use within the State of Florida. The vehicle shall be considered property of the City. If the City provides a vehicle to the Employee, then the Employee will immediately report to the Mayor and Human ResourceResources Director any accident in which the City vehicle is involved while being used to conduct City businessby Employee. 3. Employee shall provide aassure that the vehicle for his use m conducting City business tflat-is kel21 in clean and presentable condition at all times. C. Equipment: The City will furnish Employee a cellular telephone and a personal digital assistant (PDA) to be used exclusively for City business. Use of the PDA shall be subject to the same guidelines applicable to members of the City Commission,. All records for the City-provided cell phone are City records. D. Dues and Subscriptions: Subject to presentation of proper receipts or invoices and the appropriation of funds as part of the City's annual budget, City agrees to pay for the professional dues and subscriptions reasonably necessary for Employee's continuation and full participation in national, regional, state and local associations and organizations which 3 ORLA 581521.15815112 ORLA_585470.1 Employee determines are necessary and desirable for his continued professional participation, growth and advancement, and for the good ofthe City. Additionally. the City shall pay for other memberships and subscriptions on behalf of the Employee. which the City Commission. in its exclusive discretion. approves in advance. Additionally, the City shall pay for other memberships and subscriptions on behalf of the Employee, which the City Commission, in its exclusive discretion, approves in ad\'ance. E. Conventions: E. Conventions: (1) City hereby agrees to budget and to pay the registration fees, travel and subsistence consistent with subparagraph iaili:31 below for attendance by Employee as a member in good standing to the annual meeting~ or convention of the International City Management Association, the Florida League of Cities, Florida City and County Manager's Association and the National League of Cities. (2) Additionally, the City shall pay for all other meetings, seminars and short courses attended by the Employee, which the City Commission, in its exclusive discretion~ approves in advance-wbeH. If attendance at such functions requires overnight travel and expense reimbursement the Employee shall be reimbursed in accordance with City policy. (3) All other expenses shall be reimbursed in accordance with the City policy applicable to all employees. F. Deferred Compensation: In addition to the base salary paid to the Employee, the City agrees. during: the term of this Ag:reement to contribute annually ten and ninety-five hundrethshundredths percent (10.95%) of the base salary of Employee, up to the maximum allowed, into a deferred compensation or retirement plan on Employee's behalf, such plan to be designated by Employee, with such contributions being in equal proportionate amounts each pay period.---+fle Between October L 2007 and July lO. 2009 only. the deferred compensation payments made hereunder are made in lieu of Employee's participation in the City Retirementof Ocoee General Employees Pension Plan, which he voluntarily elects not to participate in~ until July 1 L 2009. The City agrees while Employee is employed by the City to execute all necessary agreements in connectionconnections with any such deferred compensation or retirement plan in order to allow for Employee's continued participation therein. Participation bv the Emplovee in the City of Ocoee General Employees Pension Plan shall not affect the oblig:ation of the City under this subparag:raph. 5. Extent of Services and Hours of Work: A. Except during periods of illness, vacation, or absences of a day or more authorized by the Mayor, or his designee, Employee will devote his best efforts to the performance of his duties and responsibilities under this Agreement. Nothing herein will limit Employee's right to make passive investments, to participate in charitable service and organizations, other community activities and trade and professional organizations or to undertake other activities which do not interfere with the performance of his duties hereunder, it being mutually agreed that his participation in charitable service, other community activities, and 4 ORLA_581521.15815112 ORLA_585470.1 trade and professional organizations is to the benefit of the City. Employee shall not otherwise be employed on a full or part-time basis without the written permission of the City Commission with the exception of his continued participation as a reserve deputy sheriff in order to maintain his Florida certification credentials; provided his participation does not interfere with his duties under this Agreement as determined by the City Commission. B. Employee shall be "on-call" 24 hours a day and agreesaQree to make himself available as needed7. however he may take advantaQe of any alternative work schedule offered to other emolovees. It is recognized that Employee's duties as City Manager require a great deal of time outside of normal office hours. It is also recognized that Employee is required to devote an unspecified amount of time and energy to carry out those duties with the highest amount of professionalism possible and that because of the "24- hour" nature of his responsibilities, interference with his private life is to be expected. That being the case, the parties recognize that Employee may choose to take occasional personal casual time off within the general area of the City of Ocoee during the City's normal business hours, when his duties allow and his absence will not interfere with the efficient operation of City business,; provided, however, that he is at all times immediately available by telephone or beeper, except during periods of illness, vacation and absences approved by the Mayor or his designee. This casual time off is not considered vacation nor compensatory time.as PTO or administrative leave. Employee agrees that~ at all times, including personal time as set forth herein, he will conduct himself in a professional manner and not bring discredit to the City or to the operation of its business. The Commission willmav consider Employee's use of personal such casual time off during its annualperiodic performance evaluationevaluations of him. 6. Indemnification and Cooperation: A. The City shall defend, hold harmless and indemnify Employee against any tort, professional liability claim or demand or other legal action for which the City is legally responsible for actions of Employee acting in his capacity as the City Manager and which are within the scope of his authority and employment as City Manager, subject to applicable law and the City Charter and Ordinances, and any limitations contained therein. B. In the event of actual or threatened litigation and/or administrative proceedings involving the City which arise out of the operation or actions which occurred or are alleged to have occurred while Employee was the City Manager of the City of Ocoee, Employee will cooperate with the City and its counsel in assisting the City in every legal manner to prevail in said action. The City shall pay Employee's reasonable travel expenses and subsistence expenses incurred away from his home incurred in preparation for and actual discovery, settlement and trial of all said matters. C. Employee further agrees that unless required by law, behe will not cooperate with or assist any party, person,7 or entity who has, had or may have, or asserts that he7 has or may have any claim or any nature against the City, its agents, officers, employees, City Commission members or representatives, without the express written permission of the City Commission, or its designee. 5 ORLA 581521.15.815112 ORLA_585470.1 D. Employee shall not disclose any confidential or orivate information involving the business of the City to any person or entity without the written permission of the City Commission, or its designee, unless required to do so by law. E. Restrictions set forth in subparagraphs C and D above shall not apply in instances of governmental entities with jurisdiction over a claim of a violation of law. 7. Resignation and Termination: A. Resignation: Termination bv Emnlovee: The Emnloyee may resiQ.n and terminate this AQ.reement unon thirty (30) davs written notice to the City. Should Employee resign his employment and terminate this AQ.reement: 1. Employee shall receive no severance payor benefits under this Agreement, except as may be otherwise provided in the City Personnel Rules and Regulations applicable to him if he resigns his employment. 2. This Agreement (except for paragraphs 6B, 6C and 6DParaQ.ranh 6 which shall remain in force and effect for as long as the law allows) shall be automatically canceled, and except as to those paragraphs that continue in effect, neither Employee nor the City shall have any further obligation one to the other under this Agreement or otherwise. B. Termination by the City: 1. Subject to the procedures set forth in Article IV, f-C-22 of the City Charter, the Employee and this Agreement may be terminated at any time. with or without cause. at the will and pleasure of the City Commission. 2. Except a~ provided in paragraphParaQ.ranh 7B(3) below, and subject to subparagraphs 7B(2) (c) and (d) below, if Employee is involuntarily terminated during the term of this ,^.greement he shall be paid severance pay under the conditions set forth in subparagraphs 7B(2)(a) ~ (h) below. A vote by a majority of the City Commission to offer Employee the opportunity to voluntarily resign in lieu of involuntary termination, shall be considered an involunturyg termination under and subject to the conditions set forth in this subparagraph 7B(2) below: (a) Three (3The Emnloyee shall receive severance nay equal to twelve (12) months base salary if terminated prior to October 1, 2005, plus one (l) additional month of base salary for each year of continuous service after September 30,2005 (the year shall be October 1 to September 30) capped at no more than six (6) months of base pay in total; provided, however, there shall be no severance ~due in cases of termination consistent with SectionParaQ.ranh 7B(3), or ','oluntary termination, but it shall be paid in the event of non renev,'al of this Agreement by the Emnloyee. (b) City shall continue to pay for the premium necessary to provide Employee group medical insurance during the period he receives severanccfor a neriod of 12 months from the date of the Emnloyee' s termination under paragraph 7B, just as if he had 6 ORLA 581521.15815112 ORLA_585470.1 remained actively employed during thesuch period he receives se'/erunce, but subject to the conditions set forth in subparagraph 7B(2)(d) and 7B(3) below. (c) Employee compliesshall comoly with paragraphs 6B through 6D of this Agreement (Confidentiality and Cooperation) followim! termination of this Agreement. (d) The City shall no longer be obligated to pay the premiums for Employee's group medical insurance under subparagraph 7B(2)(bl above once Employee has obtained employment with another employer who offers group medical insurance for which Employee meets that employer's eligibility requirements (and assuming any waiting periods have passed) or after 12 months from the date of the period during v/hich Employee recei','es se'/erancc pay from the CityEmoloyee's tennination under oara2:raoh 7B, whichever first occurs. (e) Upon termination of this Agreement, neither Employee nor the City shall have any obligation one to the other except alas set forth in Paragraph 6B through 6Q.,~ for accrued benefits, if any, to which Employee is entitled, if any, under the City Personnel Rules and Regulations applicable to him as an inYoluntarily~ terminated Employee, or (iii) as otherwise provided in this Agreement. (f) Employee shall execute a release of all officers, directors, members, City Commission members, employees and representatives of any and all rights hefsfie has, had or may have arising out of his employment or the cessation thereof under this Agreement and all applicable federal, state and local laws, including but not limited to claims of illegal discrimination, intentional and unintentional torts and all other types of claims whether known or unknown through the date of his termination. (g) In the event the form of government of the City is changed to a "strong Mayor" or similar form of government for which there is no City Manager, Employee may elect to voluntarily resign, in which event said resignation shall be treated as-afl involuntary termination under paragraph 7B and shall be subject to all of the subparagraphs set forth therein; provided, however, unless released by the City, the Employee agrees to remain actively employed for thirty (30) days after the "strong Mayor" or other chief executive officer under a similar form of government takes office and during that time assist in the transition. (h) In the event Employee is entitled to severance pay from the City, the City shall in addition to the severance pay, pay Employee the amount of premium the City would have paid for employee life insurance and disability insurance had he remained employed during the time period of his receipt offor which severance pay is orovided. 3. The City shall have no obligation to pay any compensationseyerance oay or to provide Employee group medical insurance under paragraph 7B(2) hereunder unless otherwise required by law if Employee is terminated for any or a combination of the following reasons: (a) Dishonesty with respect to the business and operation of the City. 7 ORLA 581521.15815112 ORLA_585470.1 (b) Violation of the City drug policy. (c) Refusal to cooperate in a legal investigation involving any aspect of the business or operation of the City conducted by or at the direction of the City Commission. (d) Conviction or pleading guilty nolo contendre to a felony. (e) Causing the City to be found in violation of law through gross neglect or willful or intentional conduct by Employee. Except as may otherwise be required by the City Charter, in the event Employee is charged with a felony or crime involving moral turpitude, the City shall have no obligation to pay Employee under paragraph 7B(2) unless and until a judgment of acquittal is entered by the Court. 8. Notice and Consent: Any written or other notice required by this Agreement shall be deemed delivered as follows: A. As to the City, when delivered by personal service to the City Clerk at the City Hall during the regular business hours of the City, or by Certified or Registered mail to the City Clerk at the City Hall, said delivery to be verified by an executed Certified or Registered mail receipt, signed by the City Clerk or the City Clerk's designee. B. As to Employee, by personal service to him or via Certified or Registered mail to him at th~ most recent mailing address set forth in the City's personnel records. 9. Miscellaneous: A. The City Personnel Rules and Regulations as they now exist or as they may be later modified by the City shall apply to Employee except: 1. When inconsistent with this Agreement or the City Charter. 2. Section 12.09 Longevity Pay, Section 15 (Disciplinary Action/Termination) and 16 (Grievance Procedure), shall not apply to Employee. B. The Mayor, or his designee, shall be the Commission Member with whom Employee shall coordinate contact between the City Commission and his office with respect to off duty time. C. On or before April l, 2006, Employee shall move '.vithin the City limits of the City of Ocoee and maintain residence within the corporate boundaries of the City so long as he is the City Manager unless the City Commission agrees othenvise. Upon presentation of acceptable receipts, Employer shall pay directly for the eKpenses of moving Employee and his 8 ORLA_581521.1~2 ORLA_585470.1 personal property from his current residence including packing, moving, storage costs, unpacking and insurance charges, provided the total amount shall not exceed three thousand dollars ($3,000.00).The Enmlovee shall not be reauired to move into the City. D. This Agreement shall be interpreted, construed and governed according to the laws of the State of Florida. In the event of litigation to enforce this Agreement, the prevailing party shall be entitled a reasonable attorney's fees and costs in addition to any other relief to which the prevailing party is entitled in accordance with applicable law. E. No amendment or variation of the terms and conditions ofthis Agreement shall be valid unless in writing and signed by the parties. F. The Employee's rights and obligations under this Agreement are personal and are not assignable; provided, however, in the event of Employee's death any accumulated but unused benefits to which an Employee's heirs and executors are entitled under the City Personnel Rules and Regulations shall inure to the benefits of Employee's heirs and executors to the same extent as all other City Employees. Severance oavments under ParaQraoh 7(B)(2) shall not be aoolicable in the event of the Emolovee's death. G. The invalidity or unenforceability of any particular prOVlSlon of this Agreement shall not affect the other provisions hereof, and this Agreement shall be construed in all respects as if such invalid or unenforceable provisions were omitted. H. This Agreement supersedes any and all other understandings or agreements, whether written or oral, and constitutes the complete and full agreement between the parties, and may be modified only by the written agreement of Employee and the City Commission. IN WITNESS WHEREOF, the parties hereto have set their hands and seals as of the day and year first above written. CITY OF OCOEE, FLORIDA ROBERT D. FRANK, Employee By: S. Scott Vandergrift, Mayor Date: Attest: Jean GraftonBeth Eikenberrv, City Clerk Approved as to form and legality this 2l st day of June, 2001. 9 ORLA 581521.15815112 ORLA_585470.1 Foley & Lardner, LLP By: City Attorney Approved by the Ocoee City Commission at a special meeting held on June 21, 2001. 10 ORLA_5B1521.15815112 ORLA_585470.1 "A..ttaehment to Employment ,,'\ereement '\"lith Robert D. Frank II ORLA_5!l1521.15815112 ORLA_585470.1 FOR USE AND RELIANCE ONLY BY THE CITY OF OCOEE, FLORIDA; APPROVED AS TO FORM AND LEGALITY this U st_=day of Jime, ~Seotember. 2007. FOLEY & LARDNER LLP By: Paul E. Rosenthal, City Attorney ORLA_581521.15815112 ORLA_585470.1 APPROVED BY THE OCOEE CITY COMMISSION AT A 8PECL'\L MEETING HELD ON JUNE 21, 2004 SEPTEMBER .2007 UNDER AGENDA ITEM NO.-J 12 Document comparison done by Workshare DeltaView on Wednesday, August 15, 2007 7:44:16 PM interwovenSite://ORLDMS 1 /ORLA/581521 /1 interwovenSite://ORLDMS1/0RLA/581511/2 standard lnseliion Deletion Moved from Moved to Style change Format change Moved deletion I nserted cell Deleted cell Moved cell Split/Mer ed cell Padding cell Statistics ;;'" 0' ,,;00)0:0"0,) If) Count 106 108 2 2 o o .218 I ~ ORLA_585470.1