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R02-190RESOLUTION NO. R02- IqO A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOYNTON BEACH, FLORIDA, AUTHORIZING THE CITY MANAGER TO EXECUTE A LETTER OF APPOINTMENT CONTRACT BETWEEN THE CITY OF BOYNTON BEACH AND HERBERT D. KELLEY, JR.; PROVIDING AN EFFECTIVE DATE. WHEREAS, the City Manager has recommended that the City enter into an Appointment Contract for Herbert D. Kelley, Jr., as Assistant Public Works Director/City Engineer, pursuant to the terms and conditions set forth in the Appointment Contract attached hereto as Exhibit "A". NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF BOYNTON BEACH, FLORIDA, THAT: Section 1. The City Commission of the City of Boynton Beach, Florida authorizes the City Manager to enter into an Appointment Contract with Herbert D. Kelley, Jr., for the position of Assistant Public Works Director/City Engineer. Section 3. This Resolution shall become effective immediately upon passage. PASSED AND ADOPTED this ~ day of November, 2002. CITY OF J~, YNTON ]~EA~H, F/I~ORIDA, LETTER OF APPOiNTMENT HERBERT D. KELLEY, JR. ASSISTANT DIRECTOR OF PUBLIC WORKS / CITY ENGINEER November 15,2002 Mr. Herbert D. Kelley, Jr. City of Boynton Beach 100 East Boynton Beach Blvd. Boynton Beach, FL 33435 Dear Mr. Kelley: I am pleased to offer you an appointment to the position of Assistant Director of Public Works / City Engineer. By accepting this position you are representing to the City that you have reviewed the job description for the position and that you possess the professional expertise, licenses, and experience to perform the services to be provided by you pursuant to the terms of this appointment. The position of Assistant Director of Public Works / City Engineer is a contractual, specialized position subject to appointment by the City Manager and not a civil service position. The City's Civil Service Rules and Regulations are not applicable to the position and by accepting the position you are waiving any rights you may have enjoyed under those rules and regulations. The provisions of the City's Personnel Policy Manual (PPM), as amended from time to time, are applicable to you, except as listed below. The following Chapters of the PPM have no application to you: Chapter Chapter Chapter Chapter Chapter Chapter II Employment. Chapter III Compensation. III Compensation. III Compensation. VII Resignation IV Benefits. IV Benefits. Chapter IV Benefits. Chapter III Compensation. Chapter VI Discipline. Chapter VI Discipline. 02. Recruitment and Selection 02. Overtime 03 Callback and On Call 04. Compensatory Time 01. Termination Pay 09. Retirement Benefits 02. Vacation Leave 03. Sick Leave with Pay 06. Incentive Pay System 01. Disciplinary Actions 02. Formal Grievances SSCAX, AGMTS\Drafi Agreements KB'xD Kelly Appointment Letter -Final.doc If you accept this appointment you will be an "at will" employee of the City and you have no vested fight or property right in your position. You acknowledge that there has been no representation or promise, expressed or implied fixing the term of your appointment. The job description for Assistant Director of Public Works / City Engineer is attached as Exhibit "A", and you agree to provide the City with the services included in that job description. Except as otherwise expressly provided by this Appointment, as Assistant Director of Public Works / City Engineer you shall at all times: Devote all your time, attention, knowledge, and skill solely and exclusively to the business and interests of the City during normal working hours and at City related events after normal business hours. Perform your duties and obligations faithfully, industriously, and to the best of your ability. Not engage in conflicting outside employment except with prior written authorization of the City Manager or his designee. do Keep the City Manager or his designee fully informed in advance of all travel and activities that take you out of the office for more than a day at a time. All travel must receive prior written approval of the Director of Public Works or his designee. A performance evaluation will be conducted by April 1 st of each year, commencing April 1, 2003, and each and every April 1 st thereafter. In addition, a mid-term evaluation will be conducted by November 1st of each year, commencing November 1, 2002 and by every November 1 st thereafter. The review and evaluation shall be in accordance with performance criteria developed by the Director of Public Works or his designee. The criteria may be added to or deleted from as the Director of Public Works or his designee may from time to time determine. Further, the Director of Public Works or his designee shall provide to you a summary written statement of the evaluation and provide an adequate opportunity for you to discuss your evaluation with the City Manager or his designee. Periodically, you will meet with the Director of Public Works or his designee and define such goals and performance objectives that are determined necessary in attainment of the objectives and shall further establish a relative priority among those various goals and objectives, which shall be reduced to writing. Such goals and objectives shall be generally attainable within the time limitations as specified in the annual operating and capital budgets and appropriations provided by the City. S:SCAXAGMTSXDraft Agreements KB~D Kelly Appointment Letter -Final.doc Compensation reviews are not subject to any specific formula applicable to other City personnel. Wage adjustments shall be at the sole discretion of the City Manager or his designee and are subject to the appropriation of funds by the City Commission. Your compensation and other monetary benefits are as follows: You shall receive an annual salary of SEVENTY SIX THOUSAND and NO/100 DOLLARS ($76,000.00), for the engineering services described herein, payable in equal installments, paid at the same intervals as the City's management personnel are paid. You shall also receive an additional FOUR THOUSAND and NO/100 ($4,000.00) DOLLARS annually, payable in equal installments, paid at the same intervals as the City's management personnel are paid, for providing Licensed Professional Surveyor services to the City of Boynton Beach. · The City shall pay or reimburse you consistent with reimbursement policies for City managerial employees. · You shall receive the same Health Insurance benefit provided to non-union City employees hired after 10/1/91. · You shall receive the Management Incentive Package, which became effective in 2001 for Supervisory Management Employees. · You shall receive the same benefit Disability Insurance provided to non-union City employees hired after 10/1/91. You are currently enrolled in, and shall continue to enjoy all benefits provided under the General Employee Pension Plan. You shall receive the same Retirement System benefit provided to non-union employees hired after 10/1/91. · You shall be entitled to observe the same paid legal holidays as managerial employees hired after 10/1/91. · You shall be entitled to accrue 20 days of vacation per year. Such revised vacation accrual shall commence upon ratification of this Letter. You shall accumulate sick leave as provided under the rules and regulations for other managerial employees of the City, including pay-out for unused sick leave on termination based on the standard for employees of the City hired after October 1, 1991. · You shall be provided with a fleet vehicle. This vehicle, the selection of which shall be as agreed to by you and the City Manager or his designee, may be used S :\CAXAGM TS\Draft Agreements KB'~D Kelly Appointment Letter -Final.doc for both City business and for personal commuting to and from work to your personal residence. If you accept the appointment, the City shall defend and indemnify you against all claims and actions, civil or criminal, provided the claims or actions arise out of and in the course of the performance of your duties and responsibilities pursuant to this Appointment; and pay any judgment that may be entered against you in a civil action arising out of and in the course of the performance of your duties and responsibilities pursuant to this Appointment, except a judgment based on intentional wrongdoing by you. The City reserves the right to select, appoint, retain, or discharge legal counsel necessary to provide the foregoing defense. The effective date of your appointment is June 1, 2002. This Appointment shall terminate: ao Co do At any time by mutual agreement of you and the City; Upon your sustained inability for all or substantially all of 180 calendar days in a 190 day period to perform all of your duties and obligations pursuant to this Appointment as a result of physical or mental illness or condition, which inability shall be verified at the City's expense (to the extent not covered by applicable medical insurance maintained by the City) by a licensed physician within fifteen days of a request for selection. The examining physician will be selected solely by the City; At any time by the City Manager or his designee's and City Commissions' unilateral termination of your Appointment for the position. Unilateral termination shall be in writing, signed by the City Manager or his designee, and need not reflect performance-related reasons; Your death; Your resignation. A resignation shall be submitted in writing and shall provide for an actual resignation date no later than forty-five (45) days following the date of notice of resignation. If this Appointment is terminated by unilateral action by the City Manager or his designee, you shall be entitled only to: ao Reimbursement for as-yet non-reimbursed expenses pursuant to this Appointment; An amount for accrued and unused vacation leave, not to exceed the maximum number of days permitted by law, according to the schedule/formula for non-union employees hired after 10/1/91; An amount for the accrued and unused sick leave, not to exceed the maximum number of days permitted by law, according to the scheduled/formula for non-union employees hired after 10/1/91; One Hundred Twenty days (120) days of prorated base salary calculated as follows: Your annual base salary as of the termination date, shall be S:\CA'~AGMTSXDraft Agreements KB\D Kelly Appointment Letter -Final.doc divided by 365 days, and that amount shall be multiplied by 120 days, less customary taxes/withholdings. If this Appointment terminates upon mutual agreement of the parties, you shall be entitled to: ao Reimbursement for as-yet non-reimbursed expenses pursuant to this Appointment; An amount for accrued and unused vacation leave, not to exceed the maximum number of days permitted by law, according to the schedule/formula for non-union employees hired after 10/1/91; An amount for accrued and unused sick leave, not to exceed the maximum number of days permitted by law, according to the schedule/formula for non-union employees hired after 10/1/91. If this Appointment terminated due to your physical disability or death, you or your beneficiary, guardian or personal representative shall be entitled only to the following compensation and benefits: Base salary through the date of resignation or such other date as mutually agreed to between you and the City Manager or his designee; Reimbursement for as-yet non-reimbursed expenses pursuant to this Appointment; An amount for accrued and unused sick and vacation leave, not to exceed the maximum number of days permitted by law, according to the schedule/formula for non-union employees hired after 10/1/91; Life and/or disability benefits if applicable. No modification of or amendment to this Appointment shall be valid unless reduced to writing and signed by both parties. No collective-bargaining agreement to which the CITY is a party shall in whole or in part govern, apply to, or be deemed part of or incorporated into this appointment. Any civil action arising out of this Appointment or the nonperformance or breach of any covenant contained in it shall be brought only in Palm Beach County, Florida. The CITY's waiver of any breach of any term, condition, or covenant of this Appointment shall not constitute the waiver of any other breach of the same or any other term, condition, or covenant of this appointment. This Agreement shall be binding on and inure to the benefit of your heirs and personal representatives and, the City regardless of changes in the persons holding office as members of the City. S:\CA'CtGMTS\Draft Agreements KBXD Kelly Appointment Letter -Final.doc If any provision of this Appointment or the application of any provision to any party or circumstance shall be prohibited by or invalid under applicable law, the provision shall be ineffective to the extent of such prohibition or invalidity without invalidating the remaining provisions of this appointment or their application to other parties or circumstances. This appointment and the terms, conditions, and covenants contained in it shall be governed by and construed in accordance with the laws of the State of Florida. This appointment letter contains the entire agreement between the City and you. All prior agreements and understandings, whether written or oral, pertaining to the City's appointment of you are fully abrogated and of no further force and effect from and after the date of this appointment letter. Regardless of which party's counsel prepared the original draft and subsequent revisions of this letter of appointment, the appointee and the City and their respective counsel have had equal opportunity to contribute to and have contributed to its contents, and this Appointment shall not be deemed to be the product of and, therefore, construed against either of them. The omission from this letter of a term or provision contained in an earlier draft of the letter shall have no evidentiary significance regarding the intent of the parties. If the foregoing terms and conditions are acceptable to you, please sign and date the original of this letter, in the space provided below, and return it to me. Kurt Bressner City Manager Herbert D. Kelley, Jr. Dated: S:\CALAGMTSLDraft Agreements KB\D Kelly Appointment Letter -Final.doc