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HomeMy WebLinkAbout2023 03 27 Regular 505 - Proposed Interim City Manager Employment Agreement by and between Phil Hursh and the City of Winter Springs • REGULAR AGENDA ITEM 505 Incnrinreted CITY COMMISSION AGENDA I MARCH 27, 2023 REGULAR MEETING 1959 TITLE Proposed Interim City Manager Employment Agreement by and between Phil Hursh and the City of Winter Springs SUMMARY The City Commission accepted the retirement of Shawn Boyle effective immediately on February 27, 2023. At that same February 27 meeting, in accordance with the City Charter's minimum 4 vote requirement, the City Commission unanimously appointed Phil Hursh, the current Public Works/City Engineering Director, as Interim City Manager subject to approval of a written employment agreement. The City Attorney was directed to prepare the attached Agreement that outlines the terms and conditions of the Interim City Manager appointment for the City Commission's consideration and approval. The proposed agreement is substantially similar to previous interim city manager agreements used in the more recent past. In addition, at the March 13, 2023 meeting, the City Commission directed that an RFP be prepared seeking the services of a professional recruiting consultant to assist the City Commission in conducting a nationwide search for a new permanent city manager. The attached Interim City Manager Employment Agreement outlines the full terms and conditions of the interim city manager position while the City Commission completes the recruiting process for a new permanent city manager. A summary of some of the non-standard terms and conditions are as follows: Term: The term commences retroactively at 12:00 midnight on February 28, 2023, and shall continue until terminated by either the City Commission or Mr. Hursh, or automatically at such date and time that the City Commission makes a permanent appointment of a City Manager and the permanent City Manager commences their employment. At-Will Temporary: Employee shall serve at the pleasure of the City Commission of Winter Springs and may be terminated with or without cause. The parties acknowledge and agree that the Interim City Manager position is 92 only a temporary assignment and that the City Commission is actively recruiting for the permanent City Manager position. Salary and benefits. The salary amount is being proposed by Mr. Hursh. The benefits are per City policy and reflect previous city manager agreements. Mr. Hursh proposes $180,000 annual salary which is rounded slightly less than the former city manager's salary. All provisions of law and rules and regulations of the City relating to vacation and sick leave, holidays, and other fringe benefits and working conditions as they now exist or hereafter may be amended shall apply to the Employee as they would to other employees of the City. The City agrees to make all required premium payments for the City 's Group Health Insurance Plan of his choosing for the Employee, spouse, and dependents that is available to all City employees. The City agrees to provide Employee use of an appropriate take-home City vehicle to be used primarily for City related business in furtherance of his duties and responsibilities as City Manager. Contingency- Return to Public Works/City Engineering Director : At such time as a permanent City Manager other than Mr. Hursh commences his or her employment or the City Commission terminates the Employee as Interim City Manager, the Employee shall be entitled to return to and resume his previous position as Public Works/Engineering Director with all benefits available to all City employees, all Employee's accrued benefits and leave balances accrued, and his time of service earned shall not lapse during the temporary assignment as Interim City Manager. The Employee's salary for Public Works/Engineering Director shall be a new adjusted salary amount of $160,000.00 as proposed by Mr. Hursh. RECOMMENDATION Pursuant to City Charter, a minimum of 4 votes of the City Commission is required to approve the Agreement. 93 INTERIM CITY MANAGER'S EMPLOYMENT AGREEMENT THIS AGREEMENT, made this day of March, 2023 ("Effective Date"), between the CITY OF WINTER SPRINGS, FLORIDA, a Florida municipal corporation (hereinafter referred to as the "Employer" or "City") and PHILIP HURSH (hereinafter referred to as the "Employee"). WHEREAS, Employer is a Florida municipal corporation organized and existing under the laws of the State of Florida; and WHEREAS, prior to the effective date of this Agreement, Employee was serving as the City's Public Works Director; and WHEREAS,after the resignation of the former City Manager effective February 27,2023, Employee was appointed by the minimum 4/5th vote of the City Commission per the City Charter on February 27, 2023 as the Interim City Manager of Winter Springs subject to the terms and conditions of this Agreement; and WHEREAS, Employer and Employee are now desirous of establishing, in writing, the duties and responsibilities of the respective parties and memorializing the terms and conditions of employment in a written agreement to be executed by and between the parties; and WHEREAS, the Employee has professional experience in the field of service required by this Agreement, is fully qualified to hold the position of Interim City Manager and is desirous of becoming the Interim City Manager; and WHEREAS, the Employer has determined this Agreement to be in the best interest of the Employer. NOW THEREFORE, in consideration of the mutual promises herein contained, it is hereby agreed as follows: 1. Employment and Duties. Employer employs the Employee in the capacity of Interim City Manager of Winter Springs, Florida. Employee acknowledges and agrees that he is accepting employment as the Interim City Manager only as a temporary assignment and that the City Commission is actively recruiting for the permanent City Manager position. Employee shall serve at the pleasure of the City Commission of Winter Springs ("City Commission") and may be terminated with or without cause. The Employee agrees to perform such duties as set forth in the Charter and Ordinances of the City of Winter Springs, as said Ordinances and Charter may be amended from time to time,together with such other duties as may be properly and legally assigned to him from time to time by the City Commission. Employee also agrees to fully and faithfully 1 94 perform such duties prescribed by the laws of the State of Florida and United States of America, including regulations of other appropriate administrative agencies, relating to the City of Winter Springs and the position of City Manager. All such duties shall be performed within the time frames or deadlines imposed by law, applicable policy, rule, or established by the City Commission. Absent a legally or City Commission imposed deadline, the Employee shall perform his duties within a reasonable period of time and with due regard for promptness, diligence, and professionalism. The Employee shall request of the City Commission from time to time such decisions or actions of the City Commission which the Employee may determine are reasonably necessary for the successful accomplishment of his duties as City Manager. And,the Employee shall assign or devote such resources and personnel in a manner in his judgment best serve the interest of the City of Winter Springs, Florida, consistent with the policies and direction of the City Commission. 2. Performance. The Employee agrees to devote his full working time and attention to the performance of the duties of the City Manager required hereunder. Employee shall not render any other services of a professional or business nature to any other person or organization without the Employer's prior written consent. This provision shall not include occasional teaching, presentations to professional organizations, writing, or performing functions on behalf of the Florida City and County Manager's Association and such other state and local government groups and committees thereof, provided such activities do not conflict or interfere with Employee's duties as City Manager under this Agreement. 3. Term. (a) The term of this Agreement shall commence retroactively from midnight on February 28, 2023, and shall continue until terminated by either Employer or Employee as provided herein or shall automatically terminate at such date and time that the City Commission makes a permanent appointment of a City Manager and the permanent City Manager commences his or her employment. At such time as a permanent City Manager other than Employee commences his or her employment or the City Commission terminates the Employee as Interim City Manager, the Employee shall be entitled to return to and resume his previous position as Public Works/Engineering Director with all benefits available to all City employees, all Employee's accrued benefits and leave balances accrued, and his time of service earned shall not lapse during the temporary assignment as Interim City Manager. The Employee's salary for Public Works/Engineering Director shall be returned to a new adjusted salary amount of$160,000.00. (b) Nothing in this Agreement shall prevent, limit, or otherwise interfere with the right of the City to terminate, at its will and without cause,the services of the Employee as Interim City Manager, subject to Employee's rights to continue as Public Works/Engineering Director for the City subject to the City's employment policies. Similarly,nothing in this Agreement shall prevent, limit or otherwise interfere with the right of the Employee to resign, at any time, from his position as the Interim City Manager, subject to Employee's right to continue in his capacity as Public 2 95 Works/Engineering Director subject to the City's employment policies. 4. Compensation. For his services to the Employer, the Employee shall be compensated as follows: (a) Salary. Commencing on the effective date of this Agreement, the Employee shall receive a starting salary of One Hundred Eighty Thousand andNo/100 Dollars($180,000.00), payable in installments at the same time as other employees of the Employer are paid, less appropriate deductions for employment taxes, income tax and other lawful withholdings. Employee shall not be entitled to overtime or compensatory benefits. The Employee's annual base salary may be adjusted based on the City Commission's annual evaluation of Employee's performance, or by mutual agreement of the City Commission and Employee. The position of Interim City Manager is an exempt position under state and federal wage and hour laws. The Employee shall not receive overtime. 5. Other Conditions of Employment. The Employee, on condition of his employment by the Employer, agrees to the following: (a) Hours of Work. The Employee agrees that, subject to Employee's inability to work due to sickness or injury, at all times during the term of this Agreement, he will arrange to be available to perform the duties of his employment not only during the regular business hours of the Employer, but also at such other times as the Employer shall from time to time reasonably request and that he shall not be entitled to any compensation in addition to that provided for herein for services rendered by him outside of the City's regular business hours, or on Saturdays, Sundays or holidays. (b) Vacation, Sick Leave, Holidays and Other Benefits. Except as expressly provided herein, all provisions of law and rules and regulations of the City relating to vacation and sick leave,holidays,and other fringe benefits and working conditions as they now exist or hereafter may be amended shall apply to the Employee as they would to other employees of the City. The City shall not at any time during the terms of his service as Interim City Manager reduce the salary, compensation, or other financial benefits of Employee except to the degree of such reduction across-the-board for all employees of the City. (c) Health Insurance. The City agrees to make all required premium payments for the City's Group Health Insurance Plan of his choosing for the Employee, spouse, and dependents that is available to all City employees. (d) Professional Association and Development. The City hereby agrees to budget for and pay the travel and subsistence expenses of Employee for professional and official travel, meetings, conferences, training, seminars, and occasions consistent with the City's Travel Policy applicable to all City employees. The foregoing shall be subject to the needs of the City and budgetary appropriation by the City Commission. 3 96 (e) Automobile Allowance. The Employer agrees to provide Employee use of an appropriate take-home City vehicle to be used primarily for City related business in furtherance of his duties and responsibilities as City Manager. (f) Other Miscellaneous. The City Commission, in consultation with the Employee, shall fix any such other terms and conditions of employment as it may determine from time to time relating to the performance of the Employee, provided such terms and conditions are not inconsistent with or in conflict with the provisions of this Agreement and other applicable law. 6. Indemnification. Employer shall defend, indemnify and hold Employee harmless against any and all civil claims, demands, actions, suits, expenses and losses, including reasonable attorney's fees, arising out of the action or omission of Employee within the scope of his duties as Interim City Manager, except for acts or omissions exhibiting wanton or willful disregard of human rights, safety, or property or outside the scope of Employee's employment or willful misconduct of Employee ("Covered Loss"). Further, this covenant shall only apply to claims for punitive damages where such claims arose out of the good faith performance of the Employee's duties; otherwise, this covenant shall not apply to claims for punitive damages. The Employer may, at Employer's option, provide for legal representation of Employee through the City Attorney or outside counsel of its choice or may choose to reimburse the Employee for legal fees incurred as a result of a Covered Loss. The City will have the authority to compromise and settle any such claim or suit within the scope of the Employee's employment and pay the amount of any settlement or judgment rendered thereon. To the maximum extent permitted bylaw, the City and Employee shall rely upon the doctrine of sovereign immunity and the provisions of section 768.28,Florida Statutes, and other applicable law. This paragraph shall survive termination of this Agreement. 7. General Provisions. (a) The text herein constitutes the entire Agreement between the parties, and it may not be modified except by written Agreement signed by both parties. (b) If any provision or portion of this Agreement is found to be unenforceable, then the remainder of this Agreement shall not be affected and shall remain in full force and effect. (c) This Agreement shall be binding upon and inure to the benefit of the heirs at law and executors of Employee. (d) This Agreement shall be interpreted and governed by the laws of Florida. Venue for any action hereunder shall be in Seminole County, Florida, or if a federal action is commenced, in the Federal Court in Orlando, Florida. (e) WAIVER OF JURY TRIAL. EMPLOYEE AND EMPLOYER HEREBY 4 97 KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT EITHER MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION RELATED TO OR ARISING OUT OF, UNDER OR IN CONJUNCTION WITH THIS AGREEMENT, EMPLOYEE'S EMPLOYMENT AND TERMINATION OF EMPLOYMENT AND ANY AND ALL OTHER DISPUTES WHICH MAY ARISE BETWEEN EMPLOYER AND EMPLOYEE WHETHER BASED ON CONTRACT, COMMON LAW, LOCAL ORDINANCE, OR STATE OR FEDERAL LAW. (f) Each party hereto represents to the other that it has undertaken all necessary actions to execute this Agreement, and it has the legal authority to enter into this Agreement and to undertake all obligations imposed on it. (g) The language of the City Charter relating to the position and function of the City Manager of the City of Winter Springs, as may be amended from time to time, is incorporated herein by reference into this Agreement as though it were set forth in the text of this Agreement verbatim. (h) Both parties have participated in drafting this Agreement. As such, this Agreement shall not be construed or interpreted more strictly against any one party than against any other party. (i) The effective date of this Agreement shall be the date first written above. IN WITNESS WHEREOF,the parties have executed this Agreement on the day and year written above. EMPLOYEE: STATE OF FLORIDA ) PHILIP HURSH COUNTY OF SEMINOLE ) I HEREBY CERTIFY that on this day, before me, an officer duly authorized in the State aforesaid and in the County aforesaid to take acknowledgments, personally appeared PHILIP HURSH, before me by means of: L] online notarization, or Lj physical presence and is L—] personally known to me, or [ ] has produced as identification to me personally known to be the person described in and who executed the foregoing instrument and he acknowledged before me that he executed the same. WITNESS my hand and official seal in the County and State last aforesaid this day of 52023. NOTARY PUBLIC 5 98 EMPLOYER: By: Kevin McCann, Mayor ATTEST: Christian Gowan, City Clerk APPROVED AS TO FORM AND LEGAL SUFFICIENCY FOR THE CITY OF WINTER SPRINGS ONLY: Anthony A. Garganese, City Attorney Approved by the City Commission on: March 27, 2023 6 99