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789-Tony Ackerson Employmt Agreement 191-1. City of SanfordlTonv Ackerson EmDlovment Aareement This Agreement, made and entered into this .:2~1ray of January, 2010, by and between the City of Sanford, a Florida municipal corporation, hereinafter referred to as "the City," whose address is 300 North Park Avenue Sanford, Florida 32771, and Tony Ackerson, hereinafter referred to as "Ackerson," whose address is 141 North Road, Lake Mary, Florida 32746. Witnesseth: Whereas, the City is desirous of continuing to retain the services of an employee to provide for the general and diverse activities and services which are necessary to supervise all City activities occurring at the City's Larry A. Dale Aquatic Center and to provide recreational instructional services to the residents of the City and participants in City recreational opportunities as set forth herein; and Whereas, Tony Ackerson has served the City in the position of the City's Pool Supervisor currently and in the most recent past times; and Whereas, Ackerson wishes to obtain employment with the City to perform the duties and responsibilities as set forth herein said position with the City being a position that is exempt under the provisions of the Fair Labor Standards Act and under the terms and conditions of this Agreement; and Whereas, regardless of the dates and terms set forth herein, the parties ratify and affirm all actions taken by the City and the validity of all actions taken by the City prior to the execution of this Agreement and that the parties have had and continue to have a seamless relationship as employer and employee. 1lPage ~~~ ('",j -.-..~., ~::f' .'(;:. 'r",,1 (;;~! l::\~!. 'C:jJ .......,,4 S~~ 1,,'''4 Now, Therefore, in consideration of these premises and of good and sufficient consideration, the receipt and sufficiency of which is hereby acknowledged, the parties do hereby covenant and agree to the following: Section 1. Scope of AareementlRecitals. (a). This Agreement supersedes and revokes all prior agreements between the parties. (b). The recitals set forth in the whereas clauses above are adopted by the parties and incorporated herein as a substantive part of this Agreement. Section 2. Duties and Responsibilities. (a). The City hereby agrees to continue to employ Ackerson and Ackerson agrees to continue to be employed by the City to accomplish the duties and responsibilities as prescribed in the job description set forth in the exhibit to this Agreement which are incorporated herein by this reference thereto and, generally, relate to the following matters involving the City's Larry A. Dale Aquatic Center: (1). Supervising the City's activities and programs occurring at the City's Larry A. Dale Aquatic Center a minimum of forty (40) hours per week. Such activities and programs include, but are not limited to: (A). Scheduling and coordinating usage of the pool and events. (8). Scheduling lifeguards and other personnel. (C). Maintaining order and enforcing all usage rules. (D). Acting and serving as coach, organizer, facilitator, promoter and overall manager of the Seminole Aquatics swim team 2lPage in a high quality manner to include, but not be limited to, coordinating any and all matters associated with swim teams and events occurring at the City's Larry A. Dale Aquatic Center. With regard to usage of the City's Larry A. Dale Aquatic Center by swim teams, Ackerson shall ensure exclusive usage by the Seminole High School Swim Team and Seminole Aquatics. (E). Promoting the activities occurring at the City's Larry A. Dale Aquatic Center through advertisement and other activities and Ackerson shall provide the City with attribution and publicity of a positive nature as to all such activities whether City- sponsored or privately sponsored. (2). Performing all aspects of pool operation, repairs and maintenance at the City's Larry A. Dale Aquatic Center including, but not limited to: (A). Accomplishing daily routine and preventative maintenance for, of and to all pumps, filters, pool water heaters, and other mechanical systems; storing and maintaining chemicals and cleaning supplies; testing and using appropriate chemicals to control bacteria and algae, water ph etc.; cleaning and removing litter; inspecting all facilities and performing minor maintenance on, to and of the pool deck, bleachers, light fixtures and diving boards; all of which shall be accomplished to the satisfaction of the City. 3lpage (B). Inspecting all facilities and performing minor maintenance on, to and of the pool deck, bleachers, light fixtures and diving board(s). (C). Accomplishing such other duties as the City may require in terms of the operation and maintenance of the City's Larry A. Dale Aquatic Center. (b). All of the foregoing shall be accomplished to the satisfaction of the City. Section 3. Private Teachina/Coachina Activities. (a). In addition to City employment associated with the City's Larry A. Dale Aquatic Center, Ackerson may engage in certain private activities, for compensation, at and using the City's Larry A. Dale Aquatic Center. (b). Ackerson may engage in private lessons and receive compensation for coaching the Seminole High School Swim Team. (c). With regard to all non-City activities, Ackerson shall be responsible for all supplies, materials and equipment associated with such non-City usage of the City's Larry A. Dale Aquatic Center. Ackerson shall not use any supplies of the City unless specifically authorized by the City to do so; provided, however, that Ackerson shall not be charged for electric, water or wastewater utilities relating to the use of the City's facilities. (d). All rates, charges and fees charged for services by Ackerson at the City's Larry A. Dale Aquatic Center, except with regard to services provided to the Seminole County School District, shall be subject to approval by the City and Ackerson and the City shall enter a memorandum of understanding with the City relating to such 4lPage established rates, fees and charges prior to Ackerson engaging to provide such services. (e). In consideration of and as compensation for Ackerson using the City's Larry A. Dale Aquatic Center for private activities, Ackerson shall pay the City the sum of One Thousand Forty-Nine and No/10Oths Dollars ($1,049.00) on or before the last day of each month commencing January 1, 2010 (notwithstanding the date of execution of this Agreement) which amount shall represent the monthly amount due to the City from Ackerson. (t). Ackerson shall accomplish a background check of his employees in a manner satisfactory to the City at the cost of Ackerson and shall provide the results of each background check to the City. Section 4. Term. (a). This Agreement shall be for a term commencing nunc pro tunc to December 26, 2009 (with regard to the date of employment), notwithstanding the date of execution (provided, however, that no gap of employment shall be deemed to have occurred notwithstanding the date of execution of this Agreement or the prior actions of the parties) and shall terminate at midnight on December 31, 2010; provided, further, however, that this Agreement may be terminated earlier, as provided below. (b). This Agreement shall renew on January 1 of each succeeding year absent a party providing the other party notice of termination as set forth herein and may be amended by means of a document approved by the parties of equal dignity herewith as set forth herein. Section 5. Modification of Terms. 51 Page (a). The parties agree that the duties of Ackerson may be modified from time- to-time by the mutual consent of the City and Ackerson or at the direction of the City. (b). Notwithstanding any change of the relationship of the parties from that which exists as of the date of the execution of this Agreement, the employment of Ackerson with the City shall be construed as continuing under the terms of this Agreement, as it may be modified from time-to-time. (c). Any changes to this Agreement shall be in writing and executed by both parties and by means of a document approved by the parties of equal dignity herewith. Section 6. Compensation. (a). In consideration for the services provided by Ackerson, the City will to pay Ackerson wages, payable every other week, in the annual gross salary amount of Fifty- Four Thousand and No/10aths Dollars ($54,000.00) said rate of pay to commence on December 26,2009. (b). Ackerson agrees that he is a management employee of the City and is an exempt City Management level employee under the Fair Labor Standards Act and will not be entitled to any overtime wage payments. (c). Ackerson agrees that the City has appropriately paid for the services of Ackerson in the past by the City and that the City has appropriately compensated Ackerson for the services provided to the City prior to the execution of this Agreement. (d). Ackerson shall be subject to all personnel rules and regulations of the City to include those fiscal matters to which all other City employees or department directors are subject as determined by the City Manager. Section 7. Other Entitlements. 6lpage Ackerson shall be entitled to receive employment benefits available to regular City employees. The City shall deduct FICA and Federal withholding taxes. Section 8. Devotion of Time. (a). Ackerson agrees to devote fully adequate productive time, ability and attention to the business of the City during the term of this Agreement all to the satisfaction of the City. (b). Ackerson's rendering of any services to any person business of a commercial or professional nature or to any other person or organization at the City's Larry A. Dale Aquatic Center, whether for compensation or otherwise, except as set forth herein, is prohibited unless the City's prior written consent is obtained. Section 9. Compliance with Law. Ackerson agrees to abide by and comply with all local, State and Federal statutes, laws, ordinances, codes, rules and regulations and, with specificity, the provisions of the Code of Ethics for Public Officers and Employees as set forth in Chapter 112, Florida Statutes, and other controlling law, as well as all City ordinances, rules, regulations, policies and procedures of the City during the term of this Agreement such as, but not limited to, the Code of Ethics of the City. Section 10. Breach of Aareement. (a). If Ackerson breaches any of the terms of this Agreement or fails to fully perform his duties and responsibilities, he may be subject to immediate disciplinary action by the City up to and including termination of his employment under this Agreement. Such discipline shall be in addition to, and shall not prejudice, any other remedy to which the City may be entitled, either at law, in equity, or under this 7lpage Agreement. (b). Nothing herein shall provide Ackerson with property rights in his employment with the City. Section 11. Indemnification. (a). Ackerson shall be entitled to the same protections as any other City employee in terms of liability for actions taken within the scope of his employment with the City. (b). With regard to non-City activities, Ackerson agrees to fully and completely hold harmless, indemnify and defend the City, its officials, officers, employees, and agents against any and all claims, demands, losses, damages, actions, causes of actions, or lawsuits for damages, arising from, allegedly arising from, or related to the provision of services hereunder by the Ackerson at the facilities of the City or in any way related thereto as well as with regard to any usage of any City facility. To implement this provision, the Ackerson shall provide all necessary insurance to the satisfaction of the City's Human Resources Director. (b). Ackerson shall pay and discharge or appeal at his sole costs and expense any and all judgments, damages, costs, and expenses arising, in any way, from the use of the City's facilities for non-City activities. (c). Ackerson covenants not to sue the City. This indemnification is plenary and complete as to the activities of the Ackerson. Section 12. Assianments/Transfers. (a). Ackerson shall not assign or transfer his or her rights and obligations under this Agreement to any person or entity. Ackerson may enter into subcontracts for 8lpage any of the individual services to be performed hereunder by him when specifically authorized by means of the prior written consent of the City, but only as to his non-City activities. (b). Notwithstanding the foregoing, Ackerson shall not be required to obtain City approval when hiring his assistants and his employees to accomplish the purposes of this Agreement with regard to non-City activities; provided, however, that the City may require Ackerson to cease utilizing any assistant or employee if the City determines that such assistant or employee is acting or performing in a manner to be adverse to the interests of the City. All such persons shall undergo a background investigation satisfactory to the City. Section 13. Governina LawNenue/Compliance With Law. (a). This Agreement shall be governed by and construed in accordance with the laws of the State of Florida and the City of Sanford. (b). Venue for any dispute shall be in the Eighteenth Judicial Circuit Court in and for Seminole County, Florida. (c). Ackerson shall fully comply with all applicable local, State, and Federal environmental regulations and laws and all laws of any other type or nature. Section 14. Specific PerformancelTime Is Of The Essence. (a). Strict compliance shall be required with each and every provision of this Agreement. (b). The parties agree that failure to perform the obligations established in this Agreement shall result in irreparable damage, and that specific performance of these obligations may be obtained by suit in equity. 9lpage (c). Time is of the essence to this Agreement and every right or responsibility shall be performed within the times specified. Section 15. Attornev's Fees. In the event of any action to enforce the terms of this Agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees, paralegals' fees, and costs incurred, whether the same be incurred in a pre-litigation negotiation, litigation at the trial level, or upon appeal. Section 16. Force Maieure. The parties agree that in the event that the failure by either party to accomplish any action required hereunder within a specific time period ("Time Period") constitutes a default under terms of this Agreement and, if any such failure is due to any unforeseeable or unpredictable event or condition beyond the control of such party including, but not limited to, acts of God, acts of government authority (other than the City's own acts), acts of public enemy or war, terrorism, riots, civil disturbances, power failure, shortages of labor or materials, injunction or other court proceedings beyond the control of such party, or severe adverse weather conditions ("Uncontrollable Event"), then notwithstanding any provision of this Agreement to the contrary, that failure shall not constitute a default under this Agreement and any Time Period proscribed hereunder shall be extended by the amount of time that such party was unable to perform solely due to the Uncontrollable Event. Section 17. Interpretation. (a). Ackerson and the City agree that all words, terms and conditions contained herein are to be read in concert, each with the other, and that a provision 10lPage contained under one (1) heading may be considered to be equally applicable under another in the interpretation of this Agreement. (b). This Agreement shall not be construed more strictly against either party on the basis of being the drafter thereof, and both parties have contributed to the drafting of this Agreement. (c). This Agreement creates no interest in any City real property except as to the Ackerson's grant of a license by the City to use the City's Larry A. Dale Aquatic Center for non-City activities. Section 18. Captions. Sections and other captions contained in this Agreement are for reference purposes only and are in no way intended to describe, interpret, define, or limit the scope, extent or intent of this Agreement, or any provision hereto. Section 19. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which, taken together, shall constitute one and the same document. Section 20. Modifications/Amendments/Non-Waiver. (a). Amendments to and waivers of the provisions herein shall be made by the parties only in writing by formal amendment. This Agreement shall not be modified or amended except by written agreement executed by all parties hereto and approved by the City Commission of the City of Sanford. 11lPage (b). Failure of any party hereto to exercise any right hereunder shall not be deemed a waiver of any such right and shall not affect the right of such party to exercise at some future date any such right or any other right it may have. Section 21. Notices. (a). Whenever either party desires to give notice unto the other, notice may be sent to: For the City: City Manager City Hall 300 North Park Avenue Sanford, Florida 32771 With a copy to: Human Resources Director City Hall 300 North Park Avenue Sanford, Florida 32771 For Ackerson: Tony Ackerson 141 North Road Lake Mary, Florida 32746 (b). Either of the parties may change, by written notice as provided herein, the addresses or persons for receipt of notices. Section 22. No Authority to Bind City. Ackerson has no authority to enter into contracts or agreement on behalf of the City. This Agreement does not create a partnership between the parties. Section 23. Termination. 12lpage This Agreement may be terminated by either party for any reason upon thirty (30) days written notice, provided via United States Mail to the addresses below: As to the City: City of Sanford Post Office Box 1788 Sanford, Florida 32772-1788 As to the Ackerson: Tony Ackerson 141 North Road Lake Mary, Florida 32746 Section 24. Event of Termination. In the event of the termination of this Agreement prior to the completion of the term of employment specified herein, Ackerson shall be entitled to the compensation earned through to the time of termination, computed pro rata. Ackerson shall be entitled to no further compensation as of the date of termination. Section 25. Severability. The validity, interpretation, construction and effect of this Agreement shall be in accordance with and governed only by the laws of the State of Florida. Should any litigation occur as a result of or in conjunction with this Agreement, any such disputes shall be litigated in Seminole County, Florida. In the event any provision hereof is determined to be unenforceable or invalid, such unenforceability or invalidity shall not affect the remaining provisions of this Agreement, which shall remain in full force and effect. To that extent, this Agreement is deemed severable Section 26. Reauirement Of A Writina. 13lpage Any alterations, amendments, deletions, or waivers of the provisions of this Agreement shall be valid only when reduced to writing and duly signed by the parties. Section 27. Entire Aareement/lntearation. (a). It is understood and agreed that the entire Agreement of the parties is contained herein and that this Agreement supersedes all oral agreements and negotiations between the parties relating to the subject matters hereof. (b). This Agreement supersedes and revokes all prior agreements between the parties. In Witness Whereof, the parties hereto have set their hands and seals the day, month and year above written. Witnesses: f1~ ~W-7 . nature b Printed Name Attest: ~ "'-1 ' - ) .~ . AU~&: 'if! Janet Dougherty ~ ~ City Clerk For use and reliance of the Sanford City Commission only. Approved as to form and legality. 14 I P age 15lPage