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HomeMy WebLinkAbout02-03-90 WS (2) L , L ~ MINUTES OF CITY COMMISSION WORKSHOP ON CITY MANAGER CONTRACT HELD FEBRUARY 3, 1990 Mayor Dabbs called the workshop to order at 7:34 p.m. in the meeting room at Colony Plaza Hotel. PRESENT: Mayor Dabbs, Commissioners Combs, Foster, Johnson, Woodson, City Manager Shapiro, City Attorney Rosenthal, City Clerk Grafton ABSENT: None City Attorney Rosenthal advised that the contract presented tonight was substantively the same as the one presented last week and that the only changes were to make it clearly communicate what City Manager Shapiro was asking, i.e. the statement regarding salary was restated to be defined as 26 payments rather than a yearly figure and that the proposal ties to 10% figure regarding an employee earning within 10% of the City Manager's salary. The Finance Director will monitor the figures and advise when an employee's salary comes close. Commissioner Combs asked who controls the increases. City Manager Shapiro responded that the Commission does and that the 2-7% merit increase and the cost of living increases will affect the figures, but as the Commission sets the budget they will control the raises. Commissioner Woodson presented a counter proposal that included the following: 1) $55,000 the first contract year, $59,000 the second year and $62,000 the third year, 2) No employee to be hired within 10% of his salary, 3) Six months severance pay if fired but should City Manager leave without cause he should return six months salary. City Manager Shapiro responded that, because Commissioner Woodson was not present at the initial interviews, he was not aware that the figures he proposed had already been discussed and were not acceptable and that he would not sign a contract that would prohibit other staff members from receiving a cost of living increase. City Manager Shapiro said further that the retirement plan with ICMA that he is requesting is paid quarterly and cannot be released to him without Commission approval and that the plan would be available to other employees as well. And finally, that it is against his ethics to walk away from his contract once signed. Commissioner Combs stated that he basically agreed with the contract figures as originally presented and has no problem with that now, but would prefer a four year contract in order to complete the five year capital plan. Commissioner Foster complimented City Manager Shapiro for standing his ground and for doing a good job and stated that he supports the contract as presented. Commissioner Johnson said that he had checked on the ICMA retirement which is 10% while ours is 5%, (and possibly it should be addressed for all the employees), and that, as the salary should relate to the budget and the size of the town, the proposed salary is in line. Commissioner Woodson summed up that he ~ Page 2 City Commission Workshop February 3, 1990 had no problem with City Manager Shapiro, he just likes to negotiate. City Attorney Rosenthal, to clarify some of the points touched on in the discussion, said the Charter has provision for termination in absence of a contract. City Manager Shapiro's proposal says "without cause" which is not addressed in the Charter. Leaving "with cause" is covered by the Charter and in the case of breech of contract the City would not be able to extract a penalty. City Manager Shapiro explained that he would be put before the Ethics Committee should he breech a contract and, as that is not a desirable position for him, he will neither breech the contract nor go back into the landscape business. His concern was whether he would be required to pay a penalty should he become ill and unable to fullfill his contract. Mayor Dabbs said there would be no problem there, but that he was concerned with the size of the retirement and proposed 7% now and 10% in 1991. It was decided to omit Section 3 - Termination: Severance and readdress it in 30-45 days after City Attorney Rosenthal has searched out the legal possibilities. In the meantime City Manager Shapiro will participate in the retirement program like other employees until after an act~ial study is done. A revised contract omitting Section 3 will be put on the agenda for the Commission Regular Meeting on February 6, 1990. '-' City Manager Shapiro was instructed to draw a check for five of the ten days vacation budgeted for him for 1989 (which he had not been aware of due to a misunderstanding at the hiring interview). ADJOURNMENT Meeting adjourned at 8:17 p.m.. ~r .......... if FOLEY & LARDNER, VAN DEN BERG, GAY, BURKE. WILSON & ARKIN ~ ~ III NORTH ORANGE AVENUE, SUITE 1800 POST OFFICE BOX 2193 IN MILWAUKEE, WISCONSIN FOLEY & LARON ER ORLANDO, FLORIDA 32802 - 2193 TELEPHONE (407) 423-7656 FACSIMILE (407) 648-1743 777 EAST WISCONSIN AVENUE MILWAUKEE,WIS.53202-5367 TELEPHONE (414) 271-2400 TELEX 26-819 COJ:\lFIRMATION COpy FOLEY & LA RON ER MADISON, WISCONSIN CHICAGO, ILLINOIS ITASCA, ILLINOIS WASHINGTON, D. C. ALEXANDRIA. VIRGINIA ANNAPOLIS, MARYLAND JACKSONVILLE, FLORIDA TALLAHASSEE, FLORIDA TAMPA, FLORIDA WEST PALM BEACH, FLORIDA MEMORANDUM TO: Mayor and city commissioners of the City of Ocoee FROM: Paul E. Rosenthal, city Attorney DATE: January 31, 1990 RE: Proposed Employment Agreement with City Manager ~ ~ For your review and consideration, please find enclosed a proposed Employment Agreement between the City and Mr. Shapiro. Changes from the proposed Employment Agreement submitted by Mr. Shapiro have been blacklined or otherwise indicated on the enclosed draft. While I have made revisions to the proposed Employment Agreement, I do not believe that these revisions substantively changed the understanding reached between the city commission and the City Manager. The revisions are intended to clarify and better define the Agreement and to assure compliance with the City Charter. In order to assist you in reviewing the proposed Employment Agreement, I have highlighted certain provisions in this memorandum. The provisions of section 2-1 address the base salary of Mr. Shapiro. I have clarified that it is an annual salary which is payable bi-weekly in 26 installments. The base salary will automatically be increased, if necessary, in order to assure that the City Manager is paid an annual salary at least ten percent (10%) greater than that of the mostly highly paid regular employee of the City (other than the City Manager). The Finance Director would advise the City commission upon any such adjustment. The provisions of section 2-2(d) regarding health insurance clarify that the City Manager participates in the City l \ \. \ \.. J ......, To: From: Re: Date: Page 2 Mayor and city commission of the City of Ocoee Paul E. Rosenthal, Esq. Proposed Employment Agreement with City Manager January 31, 1990 Health Insurance program and that the availability of family member coverage is on the same terms and conditions as all other city employees. The matter of deferred compensation has been a subject of concern to Mr. Shapiro. Essentially, he has requested that he be allowed to participate in the ICMA Retirement Plan in lieu of the City Retirement Plan. He has also requested that, on a bottom line basis, the City contribution towards his retirement be equal to ten percent (10%) of his base annual salary without regard to the retirement plan or combination of retirement plans. We are in the process of reviewing the legality of withdrawing Mr. Shapiro from the City's Retirement Plan and anticipate providing the City Commission with our opinion at a later date. We have drafted the provisions of section 2-2(h) to contemplate the various contin- gencies regarding our opinion. section 3 addresses termination and severance of the City Manager. section 3-1 provides for the termination of the city Manager without cause. Under such circumstances he would be entitled to receive a lump sum payment equal to one-half (1/2) of this base annual salary. Additionally, he would also be entitled to receive his base annual salary through the date of termination, along with the cash value of accrued and unused vacation and sick leave. Essentially, he would be entitled to all other benefits given to City employees upon termination in addition to the lump sum severance pay. We have reviewed the provisions of section 3-1 in light of section 2 of Article IV of the city Charter dealing with the termination of the City Manager. In our opinion, the city Charter provisions contemplate the situation in which the City Manager is terminated "for cause", as opposed to a termination "without cause" pursuant to a negotiated agreement. We do not believe that the provisions of the Section 2 of Article IV of the City Charter would be applicable to the termination of the City Manager, without cause, pursuant to the provisions of section 3-1 of the Employment Agreement. Please note that we have added some procedural protection by requiring that a termination without cause must be preceded by at least five (5) days notice to the City Manager. As stated above, a removal of the city Manager "for cause" would be pursuant to Section 2 of Article IV of the City Charter. Under such circumstances, the provisions relating to severance pay would not be applicable. L ~ . To: From: Re: Date: Page 3 Mayor and City commission of the City of Ocoee Paul E. Rosenthal, Esq. Proposed Employment Agreement with City Manager January 31, 1990 The term of the Agreement is 3 years and the City Commission may negotiate a renewal six (6) months prior to the expiration of the Agreement. Mr. Shapiro has reviewed and approved the proposed Employment Agreement. In the event you have any questions or comments, please give me a call. I will be at the city Commission meeting on Saturday to address any specific concer~~ Paul E. Rosenthal ~d Encl. cc: Mr. Ellis Shapiro Ms. Jean Grafton FLOPPY/4758JJ(2) 01-(01/31/90) EMPLOYMENT AGREEMENT , \.. THIS EMPLOYMENT AGREEMENT ("the Agreement") is made between the CITY OF OCOEE, a municipal corporation organized and existing under the laws of the state of Florida, with its office located at city Hall, Ocoee, Florida (hereinafter referred to as the "City"), and ELLIS SHAPIRO, ~hose residence address is (hereinafter referred to as the "Employee"). In consideration of the mutual promises and covenants herein contained, the parties agree as follows: SECTION ONE CITY MANAGER'S DUTIES The Employee shall be employed by the city as the city Manager, and the Employee shall devote his full time to act as city Manager for the city of Ocoee and to carry out to the best of his ability all the duties imposed upon him by the Charter and the Ordinances of the city of Ocoee and such other duties as the city commission from time to time may require of him. SECTION TWO " COMPENSATION - DATE OF SERVICES ,......~ 1. BASE SALARY: In consideration for the services rendered under this Agreement, the Employee shall receive a base salary of $57,500.00 per year_commencing on February 16, 1990. Furthermore, the Employee shall receive a~ase salary of $60,000.00 per yea~ commencing February 7, 1991 and $62,500.00 er ear commencing February 16, 1992. The base salar er payable bi-weekly in twenty-six (26) ~nstallments. Notwithstanding the foregoing, the base annual salary of the Employee shall always be at least ten (10%) greater than the base annual salary of all other regular employees of the city. In the event the base annual salary of the Employee is at any time less than ten percent (10%) greater than the most highly paid regular employee of the city, then the base annual salary shall be automatically increased to an amount ten percent (10%) greater than that of the most highly paid regular employee of the city (other than the Employee). In the event of any such adjustment, the Finance Director shall so advise the city commission. 2. FRINGE BENEFITS. The Employee shall be entitled to the following fringe benefits at the ex ense of the city: a. vacation: vacation shall be ~(10) days per year and shall accrue each month of employment the same as all other employees. i , ~ (IDOO&~~ '/'3/ l~D Blacklined to show changes from draft dated, · ~ ~ L h. , ~ b. sick Leave: Shall be the same as all other employees of the City. Holidav: Holidaysashall be the same number and accrue/in the same manner as all other employees of the city. c. d. Health Insurance: The citYAshall provide comprehensive health insurance coverage in the City health insurance proqram to thi--- .Employee and all members of the Employee's family~n the same terms and conditions as Qrovided to other City employees and their- family members. ~ Automobile: The citY~hall provide an automobile for the Emp oyee during the term of this Agreement. ~he City shall pay for all maintenance, insurance, operatinq and - car telephone costs associated with such aijtomobile. Dues and Subscriotions: The city shall pay all appropriate professional dues an subscriptions on behalf of the Employee for purposes of allowing his continued and full participation in direct job related national, regional, state and local associations and organizations necessary and desirable.and as will permit his professional participation, growth and advancement for the good of Ocoee, Florida. e. f. g. Life Insurance: The cityAshal1 pay the annualApremiums necessary to provide term life insurance on the Employee's life in an amount double the Employee's anual base salary. Deferred Comoensation: (i) Except as provided in Section 2(2) (h) (ii) below, the Employee shall participate in the City's Retirement Plan at the same level of funding provided for other employees of the city. (ii) In the event the Employee can legally can withdraw from the City's Retirement Plan without materially and adversely affecting the Retirement Plan, then the City shall enter/ - 2 - l \ ~ enroll the Employee in the retirement plan established by the International City Management Association (ICMA) (or such other plan as may be designated by the Employee) and shall make an annual contribution to said ICMA retirement plan equal to ten percent (10%) of the base annual salary of the Employee. Upon such enrollment in the ICMA Retirement Plan, the Employee shall cease to be a participant in the City's Retirement Plan. (iii) In the event the Employee cannot legally withdraw from the City's Retirement Plan without materially and adversely affecting the Retirement Plan, then the City shall enter/ enroll the Employee in the retirement plan established by the ICMA (or such other plan as may be designatd by the Employee) and shall, to the extent permitted by law, make an annual contribution to said ICMA retirement plan equal to the difference, if any, between ten percent (10%) of the base annual salary of the Employee and the dollar amount contributed by the City on behalf of the Employee to the City'S Retirement Plan. Under such circumstances, the Employee shall, to the extent permitted by law, be a participant in both the City's Retirement Plan and the ICMA retirement plan. SECTION THREE ~ TERMINATION: SEVERANCE This Agreement ma be terminated b the cit without cause, by a ma]Or1 y vo e of the City Comm1ss~on preceded by at least five (5) days notice to the City Manager of the proposed termination. Upon such termination of this Agreement, the Employee (i) shall be terminated as an employee of the City, (ii) shall be paid the prorated portion of his base annual salary through the date of termination along with the cash value of accrued and unused vacation and sick leave, and (iii) shall receive a lump sum payment equal to one-half of the base annual salary of the Employee at the time of termination. The aforementioned lump sum payment shall be in full consideration of all other claims of the Employee against the City. The parties hereto acknowledge that the procedures set forth in Section 2 of Article IV of the City Charter are not applicable to removal of the Employee pursuant to this Paragraph. ^ 1. - 3 - ) ~ \ \.... 2. In the event the Employee is removed as City Manager of the City, with cause and in accordance with the procedures set forth in Section 2 of Article IV of the City Charter, then this Agreement shall automatically be terminated. SECTION FOUR TERM This Agreement shall be for a term of three (3) years Acommencing on February 18, 1990 andAterm1na ing on February 19, 1993. six (6) month~rior to the term1nat1on of this Agreement, the City and the Employee may negotiate a renewal agreement_ on such terms and conditions as may be mutually agreed upon. SECTION FIVE NOTICES Any notice required to be given under this Agreement shall be sufficient if in writing~and sent by registered~ ,certified mail, return receipt requested, to the Mayor_~nd City Clerk of the city c/o City Hall. as to the City, and to the EmPlo~ee at the Employee's last known residence.~s shown in the recor s of the City. , J \.,. SECTION SIX MISCELLANEOUS 1. GOVERNING LAW: This Agreement shall be interpreted, ~construed and governed according to the laws of the State of Florida. 2. AMENDMENTS: No amendment or variation of the terms or conditions of this Agreement shall be valid unless in writing and signed by the parties. 3. ASSIGNABILITY: The Employee's rights and obligations under this Agreement are personal and not assignable. 4. INVALID PROVISION: 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. - 4 - \ '-' \ \.,. IN WITNESS WHEREOF, the parties have executed this Agreement this ___ day of , 1990. CITY OF OCOEE, FLORIDA EMPLOYEE: LESTER DABBS, JR., Mayor ELLIS SHAPIRO ATTEST: JEAN GRAFTON, City Clerk (SEAL) l FOR USE AND RELIANCE ONLY BY THE CITY OF OCOEE APPROVED AS TO FORM AND LEGALITY this day of 1990. FOLEY & LARDNER, van den BERG, GAY, BURKE, WILSON' ARKIN By: City Attorney FloPPY/4758II(4) 01 (01/31/90) - 5 - \ '-'