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HomeMy WebLinkAboutReso 2021-3270RESOLUTION NO. 2021- Z A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF SUNNY ISLES BEACH, FLORIDA, RATIFYING THE CONSULTANT AGREEMENT WITH CHRISTOPHER J. RUSSO TO PROVIDE THE CITY WITH PROFESSIONAL SERVICES, AND A GENERAL ACKNOWLEDGMENT, WAIVER, AND RELEASE AGREEMENT; PROVIDING THE CITY MANAGER AND CITY ATTORNEY WITH THE AUTHORITY TO DO ALL THINGS NECESSARY TO EFFECTUATE THIS RESOLUTION; PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, Christopher J. Russo, was employed by City for the last nine (9) years as the City Manager; and WHEREAS, Christopher J. Russo was terminated from his employment with the City effective December 1, 2021; and WHEREAS, during his tenure, Christopher J. Russo gained extensive knowledge of the City's administrative operations and current capital improvement projects; and WHEREAS, the City wishes to retain Christopher J. Russo's services on an as needed basis throughout the term of a Consultant Agreement, as more particularly set forth in Exhibit "A"; a n d WHEREAS, the former City Manager, Christopher J. Russo, is able and willing to provide these services during a six (6) month period; and WHEREAS, the City Commission hereby ratifies the approval of the Consultant Agreement and the General Acknowledgement, Wavier and Release Agreement with Christopher J. Russo to provide professional services for a period of up to six (6) months, attached hereto as Exhibit "A". NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF SUNNY ISLES BEACH, FLORIDA, AS FOLLOWS: Section 1. Ratifying the Approval of Consultant and General Acknowledgement, Wavier and Release Agreements. The City Commission hereby ratifies the approval of the Consultant and General Acknowledgement, Wavier and Release Agreements with Christopher J. Russo to provide professional services for a period not to exceed six (6) months, attached hereto as Exhibit "A". Section 2. Authorization of City Manager and City Attorney. The City Manager and City Attorney are hereby authorized to do all things necessary to effectuate this Resolution. Section 3. Effective Date. This Resolution will become effective upon adoption. 82021 Russo Consulting Agreement PASSED AND ADOPTED this 6th day of December 2021. Dana Robin Goldman, Mayor APPROVED AS TO FORM AND LEGAL SUFFICIENCY: fzkv)ad� it 4 Edward A. Dion, City Attorney Moved by: c Seconded by: Uc S S7` 0 Vote: Mayor Goldman (Yes) (No) Vice Mayor Viscarra (Yes) (No) Commissioner Lama 7 (Yes) (No) Commissioner Rabinovich (Yes) (No) Commissioner Stuyvesant (Yes) (No) R2021 Russo Consulting Agreement GENERAL ACKNOWLEDGMENT. WAIVER. AND RELEASE AGREEMENT THIS GENERAL ACKNOWLEDGEMENT, WAIVER, AND RELEASE AGREEMENT made this 1 ` V� day of 5e--- X; ` 2021, by and between CHRISTOPHER J. RUSSO (hereinafter referred to as "Employee"), and the CITY OF SUNNY ISLES BEACH, including its respective current and former city commissioners, employees, attorneys, agents, representatives, and officials (all in their official and individual capacities), as well as their heirs, executors, administrators, predecessors, successors (hereinafter referred as to the "City"), is attached to and made a part of the Consultant Agreement between the parties. WHEREAS, Employee is employed by the City as the City Manager on a contractual basis as evidenced by Employee's contract dated July 19, 2012; and WHEREAS, Employee was terminated effective December 1, 2021, and the parties to this Agreement desire to enter into an agreement in order to settle all issues including benefits to Employee as a result of his separation from employment with the City. NOW, THEREFORE, for good and valuable consideration, receipt of which is hereby acknowledged, the City and Employee agree as follows: 1. Termination from Emploent. Effective on December 1, 2021, Employee's employment with the City is terminated. 2. Consideration. In consideration for Employee's waiver and release of all claims against the City, the City understands and agrees that Employee shall remain as a Consultant for the City until May 31, 2022, pursuant to the Consultant Agreement incorporated herein by reference, and the City has agreed to provide Employee the following as severance compensation and compensation for consultant services as more particularly set forth below: a. The City shall pay Employee his regular compensation subject to applicable taxes in the same manner paid to regular employees for a period commencing December 1, 2021 and ending May 31, 2022; b. The City shall pay Employee for accrued vacation hours earned up to the time of resignation pursuant to the policies of the City, subject to applicable tax. The City shall also pay Employee for his accrued sick leave hours earned up to December 1, Page 1 of 7 r oi— Chrif op er J. Russo City 2021, pursuant to the policies of the City, subject to applicable taxes. Vacation and Sick leave hours shall be paid in lump sum no later than a week after approval of this Agreement by the City Commission; c. The City shall permit the Employee to keep his current 2013 Dodge Durango City issued vehicle as of December 1, 2021. As such, the City shall take all necessary steps to transfer the title of the vehicle to Employee. Upon the transfer of title of the vehicle, the Employee shall be responsible for all costs associated with the vehicle. Severance compensation herein is limited to the applicable amount allowable under state law (to wit, 20 weeks), all other compensation is for the consultant services and resolution of any and all potential claims as described below. Employee shall not receive any other compensation or benefits except for the compensation and benefits set forth above. 3. Full and General Waiver of All Rights and Claims. Employee hereby knowingly and voluntarily releases, waives, and forever discharges any and all claims, rights, demands, actions, or causes of action, of any kind whatsoever, known or unknown, foreseen or unforeseen, foreseeable or unforeseeable, and any consequences thereof, which he has or may have against the City from the beginning of the world until the date of execution of this Agreement, including, but not limited to, any claim(s) under: The City Charter, Code, and /or any other applicable City policy or practice; Title VII of the Civil Rights Act of 1964; Act of 1992; Sections 1981 through 1988 of Title 42 of the United States Code; The Constitutions of the United States and the State of Florida; The Age Discrimination in Employment Act; The Older Workers Benefit Protection Act; Florida Wage and Hour laws; Florida and federal whistleblower laws, including § 112.3 187, Florida Statutes; the Internal Revenue Code; The Rehabilitation Act; The Consolidated Omnibus Budget Reconciliation Act; The Immigration Reform and Control Act of 1986; The Americans with Disabilities Act of 1990; The Fair Labor Standards Act; The Equal Pay Act of 1963; The Family and Page 2 of 7 Chri oph r I Russo City Medical Leave Act of 1993; COBRA.; GINA; USERRA; The Florida Civil Rights Act; Chapter 440, Florida Statutes; Chapter 448, Florida Statutes; Chapter 447, Florida Statutes; or Any other federal, state, or local civil or human rights law or local law, regulation, or ordinance. Employee also acknowledges and agrees that this release and waiver bars any claim or demand for damages, costs, fees, or other expenses, including attorneys' fees, incurred in connection with Employee's employment with the City, his separation from that employment, or with any of the above -referenced claims. Employee understands and agrees that the claims to which Employee is waiving by entering into this Agreement includes a waiver of the right to recover money or other relief in any action he might institute, and also Employee's waiver of any right to recover money or any other relief whatsoever in any action that might be brought on Employee's behalf by any other person or entity, including but not limited to, the United States Equal Employment Opportunity Commission or any other federal, state or local government agency or department. Employee understands that the foregoing list of causes of action which have been waived is meant to be illustrative rather than exhaustive and understands and acknowledges that he is waiving and releasing the City from any and all causes of action of any nature whatsoever. It is Employee's intention to fully, finally and forever resolve and release any and all disputes Employee may have or believe himself to have against the City with respect to any alleged acts occurring before the effective date of this Agreement, whether those disputes presently are known or unknown, suspected or unsuspected. 4. No Pending Lawsuits, Claims or Charges and Covenant Not to Sue. Employee represents that he does not have any charges or claims pending against the City with any federal, state, or local agency or department and does not have pending before any court any dispute of any kind against the City. Employee further represents and agrees that Employee will not hereinafter pursue, initiate, or cause to be instituted any dispute released herein against the City, and represents that Employee has not heretofore assigned or transferred, or purported to have assigned or transferred, to any entity or person, any dispute released by him herein. If it is determined that Employee has any lawsuit, charge or claim of any kind pending against Page 3 of 7 A( Christopher I Russo City the City, he agrees to dismiss all such charges, claims and/or lawsuits with prejudice, immediately upon the effective date of this Agreement. 5. Adequacy of Consideration. The City and Employee agree and acknowledge that the consideration set forth in paragraph 2 of this Agreement constitutes good, valuable and sufficient consideration upon which both City and Employee have upon as a substantial inducement to enter into this Agreement, subject to the terms, conditions and covenants expressed herein, including Employee's full waiver and release of all claims against the City. Employee acknowledges and agrees that, should he elect not to sign this Agreement, his separation from employment with the City will be effective as of November 30, 2021, and further, Employee will be paid out for his accrued leave following said separation date in accordance with the City's policies and the Employee's Contract dated July 19, 2012. 6. Property of the City. Employee agrees that he will return to the City property including but not limited to identification card, keys, computers or laptop, and other electronic data instruments, all documents, confidential records, Employee information, financial information, plans,. projections, data, formula, specification, and equipment owned by the City prior to the receipt of any compensation under this Agreement. All property, records, files, data Employee information, drawings, documents, models, equipment, and the like relating to the businesses of the City, which Employee has used, prepared or came in -contact with during his employment by the City, shall be and remain the sole property of the City and shall not be removed from the premises of the City without its written consent. 7. Time to Consider Signing A egr ement. Employee acknowledges that he has been given a reasonable period of time of not less than twenty-one (21) days within which to decide whether to sign this Agreement. Employee understands and agrees that any changes or amendments to this Agreement, whether material or not, will not re -start the twenty-one (21) day period. EMPLOYEE understands and agrees that he can use all or any part of the twenty-one (21) day period to decide whether to sign this Agreement or agrees to waive this provision. EMPLOYEE further acknowledges that he has, in fact, taken a reasonable period of time to consider this Agreement. Page 4 of 7 Christophe l Russo City 8. Seven (7) Day Period to Revoke. Employee understands that he can revoke this Agreement within seven (7) calendar days after he signs it. Any revocation within this period must be in writing and must be delivered to City Attorney Edward A. Dion, Esq., by 5:00 p.m. on the seventh (7) day following Employee's execution of the Agreement. Employee understands and agrees that this Agreement will become null and void in the event that Employee revokes this Agreement. Any revocation of this Agreement shall cause the termination of the Consultant Agreement. 9. Effective Date. This Agreement will become effective upon the execution of this Agreement by Employee and the expiration of the seven (7) day revocation period has expired, if Employee has not revoked this Agreement, this Agreement shall be binding upon the parties. 10. Non -Admission of Wrongdoing and Recommendation. The parties agree that neither this Agreement nor the furnishing of any consideration under this Agreement shall be construed or interpreted as an admission by either parry of any wrongdoing, liability or unlawful conduct. In fact, both the City and Employee respectively expressly deny any wrongdoing or liability to the other. The City Manager's office agrees that if it is contacted by a prospective employer of Employee, it shall provide the prospective employer with a positive recommendation. The elected officials further agree that if they are contacted by a prospective employer of Employee, they shall either provide the prospective employer with a positive recommendation, or reserve the right not to provide any recommendation. 11. Consequences of Breach. Employee agrees that if he breaches any of the promises set forth in this Agreement, Employee will be deemed to have forfeited any and all consideration given to him under this Agreement by the City. 12. Venue. The parties agree that if any litigation arises regarding a breach and/or the interpretation or enforcement of this Agreement, such litigation shall be in Miami -Dade County, Florida. 13. Governing Law and Severability. This Agreement shall be governed and construed in accordance with the laws of the State of Florida. If any provision of this Agreement is declared illegal or unenforceable by any court of competent jurisdiction and if it cannot be modified to be enforceable, such provision shall immediately become null and Page 5 of 7 Chriopher J. Russo City void, leaving the remainder of this Agreement in full force and effect. The language of this Agreement shall be construed as a whole, according to its fair meaning, and not strictly construed for or against either parry. 14. Entire Agreement. This Agreement together with the Consultant Agreement sets forth the entire agreement between the parties and shall supersede any and all prior agreements, understandings, whether written or oral, between the parties, except as otherwise specified in this Agreement. Employee acknowledges that he has not relied on any representations, promises, or agreements of any kind made to him in connection with Employee's decision to sign this Agreement except for those set forth in this Agreement. 15. Amendment. This Agreement may not be amended except by written agreement signed by all parties. 16. Headings. Section headings are used herein for convenience of reference only and shall not affect the meaning of any provision of this Agreement. 17. Acknowledgment. Employee acknowledges that he has carefully read and understands this Agreement consisting of seven (7) pages and agrees that the City has not made any representations other than those contained herein. Employee also acknowledges that he enters into this Agreement voluntarily, without any pressure or coercion and with full knowledge of its significance, and this Agreement constitutes a full and absolute settlement and bar as to any and all claim s he had, has, or may have against the City. Employee acknowledges that he was advised to consult with an attorney before signing this Agreement and that he has either consulted with an attorney or has decided not to consult with an attorney. THE PARTIES HAVE READ UNDERSTOOD, AND FULLY CONSIDERED THIS AGREEMENT AND ARE MUTUALLY DESIROUS OF ENTERING INTO THE AGREEMENT. THE TERMS OF THIS AGREEMENT ARE THE PRODUCT OF MUTUAL NEGOTIATION AND COMPROMISE BETWEEN THE CITY AND CHRISTOPHER J. RUSSO HAVING ELECTED TO EXECUTE THIS AGREEMENT, TO FULFILL THE PROMISES SET FORTH HEREIN, AND TO RECEIVE THE BENEFITS SET FORTH ABOVE, THE PARTIES FREELY AND KNOWINGLY, AND AFTER DUE CONSIDERATION, ENTER INTO THIS AGREEMENT INTENDING TO RELEASE, WAIVE, Page 6 of 7 4& Chri oph r J. Russo City AND SETTLE ALL CLAIMS THEY HAD OR MIGHT NOW HAVE AGAINST EACHOTHER FROM THE BEGINNING OF TIME UNTIL THE EFFECTIVE DATE OF THIS AGREEMENT. IN WITNESS WHEREOF, the parties hereto knowingly and voluntarily executed this Agreement as of the date set forth below. Christopher L Russo City of Sunny Isles Beach, Florida B: B Y Y: Dana Robin Goldman, Mayor Date: L °ice z Z*Z Date: Approval As To 1 Form And Sufficiency: By: � ) '— — "dward A. Dion, City Attorney Page 7 of 7 Chris5ophefJ. Russo City CONSULTANT AGREEMENT