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Agenda 06/26/2012 Item #14B16/26/2012 Item 14.6.1. EXECUTIVE SUMMARY Recommendation that the Collier County Community Redevelopment Agency (CRA) accept and approve a Bayshore Gateway Triangle CRA Executive Director Termination and Settlement Agreement and authorize the CRA Chairman to sign OBJECTIVE: To approve a Termination and Settlement Agreement between the Community Redevelopment Agency Board and the Bayshore Gateway Triangle CRA Executive Director, and authorize the Chairman to sign. CONSIDERATIONS: The CRA Local Advisory Board has worked closely with the Executive Director and CRA staff for seven years, and routinely makes recommendations to the CRA Board to approve projects that are consistent with the CRA Plan and meets the needs of the community. In view of the CRA Board's February 28, 2012 approval of the Finance Committee's Plan of Action concerning the CRA budget and loan refinancing, the Local Advisory Board met on March 6, 2012 to focus on discretionary spending for FY2013 -2014. To meet budgetary goals, personnel reductions were analyzed and a motion was approved to recommend that the CRA Board terminate the Executive Director's contract (Exhibit A) "without cause" in accordance with the "Severance Terms" of the contract, due to budget considerations. The Director's severance package of 20 weeks of base salary would be a lump sum of $48,048.85; however, informal discussions with some members of the CRA Board indicate that a mutual agreement and acceptance of a six (6) week severance (approximately $14,414.65) in accordance with FS125.425 (Exhibit B) would be acceptable. FISCAL IMPACT: The Executive Director's annual salary/benefits package is approximately $162,012, and elimination of this position would be a cost savings of approximately $324,024 over two years. There is sufficient funding in the FY2012 budget to pay the $14,414.65 severance. GROWTH MANAGEMENT IMPACT: None. LEGAL CONSIDERATIONS: The Termination Agreement was prepared by the County Attorney, and for the reasons set forth therein, is legally sufficient. This item requires majority vote for approval. -JAK RECOMMENDATION: That the CRA Board accept and approve Agreement between the Community Redevelopment Agency Board Triangle CRA Executive Director, and authorize the Chairman to sign.. Prepared by David L. Jackson on June 13, 2012 Executive Director, Bayshore Gateway Triangle CRA Packet Page -600- Termination and Settlement and the Bayshore Gateway 6/26/2012 Item 14.6.1. COLLIER COUNTY Board of County Commissioners Item Number: 14.8.1. Item Summary: Recommendation that the Collier County Community Redevelopment Agency (CRA) accept and approve a Bayshore Gateway Triangle CRA Executive Director Termination and Settlement Agreement and authorize the CRA Chairman to sign Meeting Date: 6/26/2012 Prepared By Name: JacksonDavid Title: Executive Director, Bayshore CRA 6/13/2012 4:41:51 PM Submitted by Title: Executive Director, Bayshore CRA Name: JacksonDavid 6/13/2012 4:41:53 PM Approved By Name: KlatzkowJeff Title: County Attorney Date: 6/14/2012 2:30:16 PM Name: KlatzkowJeff Title: County Attorney Date: 6/14/2012 3:31:42 PM Name: FinnEd Title: Senior Budget Analyst, OMB Date: 6/15/2012 1:22:42 PM Name: OchsLeo Title: County Manager Packet Page -601- 6/26/2012 Item 14.6.1. Date: 6/17/2012 8:28:32 AM • 6/26/2012 Item 14.6.1. TERMINATION AND SETTLEMENT OF EMPLOYMENT AGREEMENT BETWEEN DAVID L. JACKSON AND THE BOARD OF THE COLLIER COUNTY COMMUNITY REDEVELOPMENT AGENCY THIS TERMINATION AND SETTLEMENT AGREEMENT is made and entered into this 26th day of June, 2012, by and between the Collier County Board of County Commissioners, in its capacity as the governing body of the Collier County Community Redevelopment Agency (hereinafter referred to as the "CRA "), and David L. Jackson (hereinafter referred to as the "Employee "). RECITALS: WHEREAS, on March 22, 2005, the parties entered into an Employment Agreement, hiring Employee as the Executive Director of the Bayshore /Gateway Triangle Redevelopment Area, retroactive to March 16, 2005; and WHEREAS, on November 1, 2005, the parties entered into a revised Employment Agreement (hereinafter referred to as the "Employment Agreement ") hiring the Employee to serve as the Executive Director of the Collier CRA Bayshore Gateway Triangle, which Agreement provided for a term of employment and other terms and conditions of employment; and WHEREAS, the Agreement has previously been extended and amended on June 26, 2007, April 13, 2010, September 27, 2011 and restated on May 8, 2012, which restated Employment Agreement is attached hereto as Exhibit "A;" and WHEREAS, there is a Loan Agreement dated September 1, 2009, by and between the CRA and Fifth Third Bank, with a current outstanding principal on this loan as of June 12, 2012, of $9,911,000 and a principal balance due on September 1, 2014 of $8,800,000; and WHEREAS, due to financial circumstances beyond anyone's control which have affected the entire U.S. economy, and more particularly the Bayshore CRA area, tax increment revenues and market values of CRA -owned property have fallen considerably since the CRA entered into the Loan Agreement; and WHEREAS, on June 12, 2012, the CRA Board accepted the Finance Committee's recommendation to reject the lone bid received from Fifth Third Bank under Invitation to Bid 12 -5877 which was issued in an attempt to refinance and restructure the current Bayshore /Gateway Triangle CRA Series 2009 Term Loan under more favorable financing terms and at the lowest overall financing cost; and WHEREAS, unless current circumstances change, the CRA will not have sufficient funds to pay the principal balance due on September 1, 2014 of $8,800,000; and Page 1 of 4 Packet Page -603- 6/26/2012 Item 14.13.1. WHEREAS, given the present financial circumstances, it is no longer in the best interest of the CRA to continue the employment of David L. Jackson as its Executive Director, but instead to redirect both future CRA revenues and the compensation due Mr. Jackson under the terms of his Employment Agreement to a reserve fund to be used to help pay the remaining debt due on the loan; and WHEREAS, Mr. Jackson's Employment Agreement provides that "In the event the Executive Director is terminated by CRA Board, the CRA Board agrees to pay the Executive Director 20 weeks of the Executive Director's base salary for termination without cause;" and WHEREAS, to avoid a future employment dispute over this 20 -week severance payment, pursuant to Florida Statutes Sec. 215.425, the CRA is willing to pay Mr. Jackson, and Mr. Jackson is willing to accept, the sum of $14,414.65, representing 6 weeks compensation. WITNESSETH: NOW, THEREFORE, in consideration of the mutual covenants herein contained, the parties agree as follows: 1. TERMINATION OF EMPLOYMENT AGREEMENT. The Employment Agreement, and Mr. Jackson's last day as the Executive Director of the Bayshore /Gateway Triangle Redevelopment Area, shall be terminated effective as of 5p.m. June 29, 2012. 2. SEVERANCE PAY. Within 10 business days from the date of this Termination Agreement, Mr. Jackson shall receive the sum of $14,414.65, representing 6 weeks compensation, together with any and all earned and accrued leave that Mr. Jackson is currently entitled to. Mr. Jackson shall promptly submit a payment request for any and all currently unpaid and due professional dues and subscriptions, travel and subsistence expenses, and incidental expenses. 3. MUTUAL GENERAL RELEASE. To the extent authorized by Florida Law, including Florida Statutes Sec. 215.425, in consideration of the mutual relinquishment of their respective legal rights with reference to disputes and differences each party expressly releases the other, and their heirs and legal representatives, from all liability for all known and unknown claims and demands arising out of the Employment Agreement and Mr. Jackson's role as the Executive Director of the Bayshore /Gateway Triangle Redevelopment Area. In further consideration of the foregoing, the parties also hereby release, acquit, satisfy, and forever discharge each other, of and from all, and all manner of action and actions, suits, debts, dues, sums of money, covenants, contracts, controversies, agreements, promises, damages, judgments, executions, claims and demands whatsoever, in law or in equity, which they ever had, now have, or which any personal representative, successor, heir or assign of them, hereafter can, shall or may have, against each of Page 2 of 4 Packet Page -604- 6/26/2012 Item 14.13.1. them, for, upon or by reason of any matter, cause or thing whatsoever, from the beginning of the world to the day of these presents. 4. GENERAL PROVISIONS: a. The provisions of this ' Termination Agreement constitute the entire understanding between the parties with respect to the subject matter set forth herein. This Termination Agreement may not be amended or modified except in a written document signed by the parties, and no other representations or understandings are binding on the CRA Board and the Executive Director unless contained in a subsequent, duly adopted and executed written amendment to this Termination Agreement. b. This Termination Agreement shall be construed and administered in accordance with Florida and any other applicable law. The sole and exclusive venue for any litigation between the parties arising out of or related to this Termination Agreement or any documents executed in connection with this Termination Agreement shall be in the Circuit Court in and for Collier County, Florida. c. Should any provision of this Termination Agreement be declared by a court of competent jurisdiction to be invalid, the same shall not affect the validity of the Termination Agreement as a whole, or any part thereof, other than the part declared to be valid. d. This Termination Agreement shall become effective as of June 26, 2012. e. The parties agree that they will execute any other documents as are necessary to effectuate or carry out the intent of this Termination Agreement. IN' WITNESS WHEREOF, the parties have caused this Termination Agreement to be executed by their appropriate representatives, as of the date first above written. ATTEST: DWIGHT E. BROCK, Clerk COLLIER COUNTY COMMUNITY REDEVELOPMENT AGENCY, COLLIER COUNTY, FLORIDA , Deputy Clerk DONNA FIALA, Chairman Page 3 of 4 Packet Page -605- 6/26/2012 Item 14.8.1. WITNESSES: David L. Jackson, Executive Director Collier County CRA Bayshore Gateway Triangle r 4 �L% By: f� Print Name• Name: C?etigo °' //4Xtr Approved as to form and legal sufficiency: Jeffrey A. Klatzkow, County Attorney Page 4 of 4 Packet Page -606- E40 6/26/2012 Item 14.6.1. EMPLOYMENT AGREEMENT BETWEEN DAVID L. JACKSON AND THE BOARD OF THE COLLIER COUNTY COMMUNITY REDEVELOPMENT AGENCY THIS AGREEMENT is made and entered into this 8th day of May, 2012, by and between the Collier County Board of County Commissioners, in its capacity as the governing body of the Collier County Community Redevelopment Agency (hereinafter referred to as the "CRA "), and David L. Jackson (hereinafter referred to as the "Employee "). RECITALS: WHEREAS, on March 22, 2005, the parties entered into any Employment Agreement, hiring Employee as the Executive Director of the Bayshore /Gateway Triangle Redevelopment Area, retroactive to March 16, 2005; and WHEREAS, on November 1, 2005, the parties entered into a revised Employment Agreement (the "Agreement ") hiring the Employee to serve as the Executive Director of the Collier CRA Bayshore Gateway Triangle, which Agreement provided for a term of employment and other terms and conditions of employment; and WHEREAS, the Agreement has previously been extended and amended on June 26, 2007, April 13, 2010 and on September 27, 2011; and WHEREAS, the extension of the term of employment under the September 27, 2011, amendment to the Agreement was mistakenly omitted; and WHEREAS, the parties desire to modify and amend the Agreement in a single document that assimilates all prior amendments to clarify their respective rights, expectations and duties hereunder; and WHEREAS, numbered paragraph 13 of the Agreement allows the parties to amend or modify that agreement upon a duly adopted and executed amendment in writing. NVITNESSETH: NOW, THEREFORE, in consideration of the mutual covenants herein contained, the parties agree as follows: 1. APPOINTMENT OF THE BAYSHORE /GATEWAY TRIANGLE REDEVELOPMENT AREA EXECUTIVE DIRECTOR: Pursuant to an action taken by the CRA Board at its meeting on March 22, 2005, David' L. Jackson was selected to be the Executive Director of the Bayshore /Gateway Triangle Redevelopment Area ( "CRA "), retroactive to March 16, 2005. Page 1 of 4 EXHIBIT--A- Packet Page -607- 6/26/2012 Item 14.6.1. 2. CONTRACT REVIEW AND RENEWAL: Notwithstanding any provision to the contrary herein, the term of this Agreement is extended for a period of four (4) years commencing on September 30, 2011, and shall terminate effective September 30, 2015, unless this Agreement is amended, extended or renegotiated as provided herein. DUTIES: The Executive Director shall perform the function and duties typical of a person in the position of Executive Director for a Community Redevelopment Agency as more fully described in the CRA Executive Director Job Description. a. The Executive Director shall act as the Chief Administrative Officer of the CRA reporting to and responsible to the CRA Board and be responsible for the day -to -day implementation of CRA budget, projects, programs and activities including CRA staff selection and supervision. b. The Executive Director shall devote his full time efforts to the CRA and its mission. c. The Executive Director shall perform such other associated and legally required duties and functions, as the CRA Board and CRA Advisory Board shall direct. d. The Executive Director agrees to perform all such functions and duties, faithfully, competently, professionally and promptly to the best of Executive Director's ability. 4. RESIGNATION: In the event the Executive Director voluntarily resigns his position with the CRA Board, then the Executive Director shall give the CRA Board sixty (60) days written notice in advance, unless the parties agree to waive such notice requirement. ANNUAL BASE SALARY: The Executive Director shall be paid for his services rendered pursuant hereto at the annual rate of $124,927.00, payable in bi- weekly installments on the same dates as professional employees of Collier County Government are paid. 6. SEVERANCE TERMS AND CONDITIONS: In the event the Executive Director is terminated by CRA Board, the CRA Board agrees to pay the Executive Director 20 weeks of the Executive Director's base salary for termination without cause. PERFORMANCE EVALUATION AND MERIT PAY: Annually the CRA Board agrees to review and evaluate the performance of the Executive Director one month prior to the anniversary of this contract. The CRA Board shall provide the Executive Director with a written summary statement of the findings of the Board and provide adequate opportunity for the Executive Director to discuss his evaluation with the CRA Board. Based upon said review and performance evaluation and at the discretion of the CRA Board, the Executive Director may receive a merit pay bonus check at a minimum of 3% to a maximum of 10% of base pay. The Executive Director's annual base salary will be adjusted annually by the same cost of living Page 2 of 4 Packet Page -608- 6/26/2012 Item 14.6.1. (COLA) rate for all County employees as determined by the Board of County Commissioners. BENEFIT PACKAGE: CRA Board agrees to provide comprehensive benefit package for the Executive Director equal to that which is currently provided to professional personnel of Collier County Government. SICK VACATION PERSONAL AND HOLIDAY LEAVE: The Executive Director shall accrue sick leave at the same frequency and with the same carryover and other limitations, if any, as currently provided to personnel under the Collier County Manager's Agency Policies and Procedures. The Executive Director will receive payout for all accrued but unused vacation time consistent with the County Manager's Policies and Procedures regarding payment of benefits at separation. 10. DUES AND SUBSCRIPTIONS: CRA Board agrees to pay for the reasonable and customary professional dues and subscriptions of the Executive Director necessary for his continued professional participation, growth and advancement, including national and state professional organizations. 11. PROFESSIONAL DEVELOPMENT: CRA Board agrees to pay the reasonable and customary travel and subsistence expenses (in accordance with applicable Florida law), for the Executive Director and his staff's travel and attendance at any meetings and conferences, which the CRA Board shall approve. 12. INCIDENTAL EXPENSES: The Executive Director shall receive an automobile mileage reimbursement, payable at the end of each month consistent with the policies followed by Collier County for its employees, a monthly cell phone allowance, and reimbursement for such other business related expenses as may be approved by the CRA Board from time to time. 13. GENERAL PROVISIONS: a. The provisions of this Agreement constitute the entire understanding between the parties. Only the representations and understandings contained herein shall be binding upon the CRA Board and the Executive Director. No other representations or understandings are binding on the CRA Board and the Executive Director unless contained in a subsequent, duly adopted and executed written Amendment to this Agreement. b. This Agreement shall be construed and administered in accordance with Florida and any other applicable law. 14. SEVERABILTIY: Should any provision of the Agreement be declared by a court of competent jurisdiction to be invalid, the same shall not affect the validity of the Agreement as a whole, or any part thereof, other than the part declared to be valid. Page 3 of 4 Packet Page -609- 6/26/2012 Item 14.13.1. 15. EFFECTIVE .DATE OF THIS AGREEMENT: This Agreement shall become effective upon execution by both parties. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their appropriate representatives, as of the date first above written. ATTEST: DWIGHT E. BROCK, Clerk Ws _ - -- Print Naive: - t ftrto Print Name: Ap roe d a d 1 al sufficiency: Sc��o�tt R. Teach. Deputy County Attorney COLLIER COUNTY COMMUNITY REDEVELOPMENT AGENCY, COLLIER COUNTY, FLORIDA By: .v "�`�J 4 DO NA FIALA, Chairman - Davtd-L;ackson. Executive Director Collier County CRA Bayshoi e GatArav Triangle i Page 4 of 4 Packet Page -610- 6/26/2012 Item 14.6.1. West's F.S.A. § 215.425 West's Florida Statutes Annotated Currentness Title XIV. Taxation and Finance (Chapters .192-221) (Refs &Annos) SiMChapter 215. Financial Matters: General Provisions (Refs & Annos) *215.425. Extra compensation claims prohibited; bonuses; severance pay (1) No extra compensation shall be made to any officer, agent, employee, or contractor after the service has been rendered or the contract made; nor shall any money be appropriated or paid on any claim the subject matter of which has not been provided for by preexisting laws, unless such compensation or claim is allowed by a law enacted by two- thirds of the members elected to each house of the Legislature. However, when adopting salary schedules for a fiscal year, a district school board or community college district board of trustees may apply the schedule for payment of all services rendered subsequent to July 1 of that fiscal year. (2) This section does not apply to: (a) A bonus or severance pay that is paid wholly from nontax revenues and nonstate- appropriated funds, the payment and receipt of which does not otherwise violate part III of chapter 112, and which is paid to an officer, agent, employee, or contractor of a public hospital that is operated by a county or a special district; or (b) A clothing and maintenance allowance given to plainclothes deputies pursuant to s. 30.49. (3) Any policy, ordinance, rule, or resolution designed to implement a bonus scheme must: (a) Base the award of a bonus on work performance; (b) Describe the performance standards and evaluation process by which a bonus will be awarded; (c) Notify all employees of the policy, ordinance, rule, or resolution before the beginning of the evaluation period on which a bonus will be based; and (d) Consider all employees for the bonus. (4)(a) On or after July 1, 2011, a unit of government that enters into a contract or employment agreement, or renewal or renegotiation of an existing contract or employment agreement, that contains a provision for severance pay with an officer, agent, employee, or contractor must include the following provisions in the contract: 1. A requirement that severance pay provided may not exceed an amount greater than 20 weeks of compensation. 2. A prohibition of provision of severance pay when the officer, agent, employee, or contractor has been fired for misconduct, as defined in s. 443.03t5 30 _, by the unit of government. (b), On or after July 1, 2011, an officer, agent, employee, or contractor may receive severance pay that is not provided for in a contract or employment agreement if the severance pay represents the settlement of an employment dispute. Such severance pay may not exceed an amount greater than 6 weeks of compensation. The settlement may not include provisions that limit the ability of any party to the settlement to discuss the dispute or settlement. (c) This subsection does not create an entitlement to severance pay in the absence of its authorization. Packet Page -611- 6/26/2012 Item 14.13.1. (d) As used in this subsection, the term "severance pay" means the actual or constructive compensation, including salary, benefits, or perquisites, for employment services yet to be rendered which is provided to an employee who has recently been or is about to be terminated. The term does not include compensation for: 1. Earned and accrued annual, sick, compensatory, or administrative leave; 2. Early retirement under provisions established in an actuarially funded pension plan subject to part VII of chapter 112; or 3. Any subsidy for the cost of a group insurance plan available to an employee upon normal or disability retirement that is by policy available to all employees of the unit of government pursuant to the unit's health insurance plan. This subparagraph may not be construed to limit the ability of a unit of government to reduce or eliminate such subsidies. (5) Any agreement or contract, executed on or after July 1, 2011, which involves extra compensation between a unit of government and an officer, agent, employee, or contractor may not include provisions that limit the ability of any party to the agreement or contract to discuss the agreement or contract. CREDITS) Laws 1979, c. 79 -190, § 27; Laws 1980, c, 80 -114, § 1; Laws 1984, c. 84 -336, § 35. Amended by Laws 1992,_c. 92 -90, 3, eff. April 8, 1992; Laws 1992 c._9_2 -279L _$3, eff. July 1, 1992, Laws_1992, c. -92 -326 q_55, Lawn 1995, -c. 95 -1£+9, A 2, ,eff, Oct: 1_ 1995; LaW5 X998, -c. 98 -320, 5. eff. MU 30, 1998; Laws 3999 c 99- 259= _8, eff. June 8. 1999; Laws 2011, c. 2011 -143 1, eff. July 1, 2011; Laws 2012, c. 2012 -5,� 24, eff. Mav 8, 2012. HISTORICAL AND STATUTORY NOTES Amendment Notes: This section, which was formerly Const.1885, Art. 16, § 11, as amended, was converted to statutory law by Const.1968. Art. 12, � 10. Laws 1979, c. 79 -190, added the second sentence, now the third sentence. Laws 1980, c. 80 -114, § 1, interpolated the second sentence. Laws 1984, c. 84 -336, § 35, inserted in the second sentence "or community college district board of trustees ". Laws 1992, c. 92 -90, § 3, eff. April 8, 1992, added the provision making the section inapplicable to extra compensation given to county or municipal employees. Laws 1992, c. 92 -279, § 83, eff. July 1, 1992, substituted "Department of Management Services" for "Department of Administration ". Laws 1992, c. 92 -326, § 55, amended § 339 of Laws 1992, c. 92 -279, by changing the general effective date of the act from Jan. 1, 1993, to July 1, 1992 ( §§ 322 to 325 and 339 took effect upon the act becoming a law). Laws 1995, c. 95 -169, § 2, eff. Oct. 1, 1995, substituted "a law enacted" for "bill passed" in the first sentence, substituted a semicolon for a period at the end of the former third sentence, Packet Page -612-