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HomeMy WebLinkAbout2009 06 22 Regular 601 City Manager ContractCOMMISSION AGENDA ITEM 601 June 22, 2009 Regular Meeting ,~ /DEPT. uthorization REQUEST: City Manager requesting the Commission consider the proposed City Manager contract. PURPOSE: This agenda item is needed for the Commission to consider the proposed City Manager contract. CONSIDERATIONS: On May 26, 2009 Commission voted to hire Kevin Smith as its City Manager and to direct the City Attorney to prepare a contract for services with Kevin Smith for consideration by the Commission. That proposed contract has been prepared and is attached herein. Key considerations are as follows: Proposed salary, auto allowance and severance were based on the below current survey of Seminole County area Managers and other factors as noted below: City Manager Compensation Survey -Seminole County 2009 Cit Population Tenure Base Sala Auto Allowance Severance Altamonte S rin s 43,529 26 Yrs $177,971 $400/month 3 months Lake Ma 14,288 20 Yrs $150,509 $400/month 3 months Casselber 25,013 2 Yrs $144,200 $450 or Cit Car 6 months Sanford 53,099 3 Yrs $142,000 $550/month 6 months Oviedo 32,855 11 Mths $135,000 $450/month 6 months Lon wood 14,062 1 Mth $115,000 Cit Car Yr 1=1 mth, Yr 2=2 mths, Yr 3= ne . Avera e $144,113 $450 Consent Informational Public Hearin I Regular I X I Salary & Retirement Current (interim) salary for the City Manager is $120,000. Based on the survey of Seminole County area City Managers, a base salary of $132,000 is proposed which is $3,000 below the salary of the neighboring Oviedo City Manager and second lowest of the Seminole County area managers. Additionally, unlike that of the former City Manager and many other City Managers, no additional retirement or insurance compensation, above that which is offered to other City employees, is requested. Auto Allowance An auto allowance is proposed at $300 per month which is $150 below the average of Seminole County area managers. An alternative to a monthly auto allowance would be reimbursement on actual usage at the IRS standard millage rate. The current IRS standard mileage rate is $0.55 per mile. However, a flat monthly auto allowance is more common and typically deemed more efficient. Severance Current City Personnel Polices dictate a 3 month severance for Department Heads. Proposed City Manager severance is 3 months plus a '/z month escalator for each full year of service up to a max of 6 months. An alternative would be 3 months only with no escalator, consistent with that provided to Department Heads. Evaluation Evaluation of the Manager's performance is proposed to be (at least) annually and to be based on specific performance criteria as established by the Commission for proper operation of the City and in attainment of the Commissions' stated goals and objectives. RECOMMENDATION: The City Manager recommends that the Commission consider the proposed City Manager contract and take whatever action it deems appropriate. ATTACHMENTS: • City Manager Kevin Smith Proposed Contract COMMISSION ACTION: CITY MANAGER'S EMPLOYMENT AGREEMENT THIS AGREEMENT, made this 22nd day ofJune, 2009, between the CITY OF WINTER SPRINGS, FLORIDA, a Florida municipal corporation (hereinafter referred to as the "Employer" or "City") and KEVIN L. SMITH (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, after the resignation of the former City Manager in January of 2009, Employee had been serving as the interim City Manager of Winter Springs; and WHEREAS, on May 26, 2009, the City Commission formally appointed Employee the City Manager of Winter Springs; 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 City Manager and is desirous of becoming the 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 City Manager of Winter Springs, Florida. 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 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 Ciry Commission. Absent a legally or City Commission imposed Page 1 of 7 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. The term of this Agreement shall commence retroactively to the date of appointment on May 26, 2009 and shall continue until terminated by either Employer or Employee as provided herein. 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 Thirty-Two Thousand and No/100 Dollars ($132,000.00), 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 compensory 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. (b) Retirement Plan. The Employer agrees to provide Employee the same retirement benefits provided to other City employees. (c) Automobile Allowance. The Employer agree to provide Employee an automobile allowance equal to Three Hundred and No/ 100 Dollars ($300.00) per month to reimburse the Employee for his automobile expenses. Said allowance shall be to reimburse the Employee for local travel only, defined as travel within the area covered by the Tri-County League of Cities including Seminole County. All travel outside of the aforementioned area shall be reimbursed at a cents-per-mile rate equal to that provided by IRS business guidelines or rate provided to regular City employees, subject to applicable statutory limitations. Page 2 of 7 (d) Life, Health, and Disability Insurance. The Employer agrees to provide Employee term life insurance, health insurance coverage, and disability insurance coverage equal to that which is provided to other City employees. 5. Other Conditions of Em~lo, went. 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. Employee shall be entitled to the same vacation time, sick leave, holidays and other benefits provided to other City employees. (c) Professional Association Dues. Employer shall pay the dues for the International City/County Management Association (ICMA) and the Florida City and County Management Association (FCCMA) and Employee's other reasonable professional associations and memberships as approved by the City Commission. The foregoing shall be subject to the needs of the City and budgetary appropriation by the City Commission. (d) Professional Develo ment. Employer hereby agrees to budget for and pay for travel and subsistence expenses of Employee for professional and official travel to include ICMA, FCCMA and Florida League of Cities annual conferences and any other conferences or seminars approved by the City Commission. The payment of such expenses shall be in accordance with the City's travel policy, as amended from time to time, or as otherwise approved by the City Commission. The foregoing shall be subject to the needs of the City and budgetary appropriation by the City Commission. 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 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 Page 3 of 7 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 by law, 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. Evaluation. (a) The City Commission shall review and evaluate the performance of the Employee at lease once annually. Said review and evaluation shall be in accordance with specific performance criteria that is developed jointly by the City Commission and Employee. Once initially developed, the criteria maybe modified as the City Commission and Employee may from time to time mutually determine. The initial evaluation under this Agreement shall be due and completed on May 24, 2010, and subsequent reviews and evaluations shall occur each year thereafter on or about the anniversary date of the initial evaluation. (b) In furtherance of defining the performance criteria, the City Commission and Employee shall annually define such goals and performance objectives that they deem necessary for the proper operation of the City and in the attainment of City Commission's policy goals and objectives. The relative priority among the various goals and objectives shall be reduced to writing. They shall generally be handled the time limitations as specified and the annual operating and capital budgets and appropriations provided. (c) The parties recognize that Employee's performance evaluation by the City Commission may not occur exactly on the anniversary date, but it will likely coincide with the regular meeting schedule of the City Commission. 8. Termination and Severance Pav. (a) The Employee shall serve at the pleasure of the Employer. The City Commission reserves the right at any time in its sole discretion and for any reason whatsoever, or for no reason, to terminate Employee's employment at a duly held public meeting. If the Employee is terminated at the pleasure of the City Commission pursuant to this subparagraph (a), without cause, the Employee shall receive severance pay equal to three (3) months current salary, plus an additional one-half (''/2) month current salary for each completed year of employment as city manager starting on the effective date of this Agreement; provided, however, the maximum severance pay shall not exceed six (6) months of current salary. In addition, Employee shall be entitled to any accrued vacation and sick leave under the same terms and conditions as any other City employee. (b) Employee agrees that the City Commission shall have the sole and absolute discretion to decide upon such termination under subparagraph 8 (a). In the event of such termination, the Employee waives all rights to contest or challenge the City Commission's decision Page 4 of 7 and will accept the payments provided in subparagraph 8 (a) in full satisfaction of the Employer's obligations under this Agreement and in full release of any and all claims that the Employee has, or may have, against the Employer, and its City Commission, employees, and City Attorney, both individually and in their official capacity, under this Agreement. (c) If the Employee is terminated by the City Commission because of: (1) a formal felony charge filed against him by the State or U.S. attorney or conviction of a felony; (2) misfeasance, malfeasance, or neglect of duty; (3) failure to carry out the duties assigned under this Agreement, City Charter, or law; (4) conviction of a violation of the Florida Ethics Laws or any illegal act involving personal gain to him; (5) abandonment of the Office of City Manager; (6) habitual drunkenness; or (7) permanent inability to perform his official duties as city manager, then the Employee shall not be entitled to any severance pay. If City Commission terminates Employee for cause pursuant to this subparagraph (c), the Employee's sole legal remedy is an action in the court of appropriate jurisdiction and venue. If said court determines that the City Commission did not properly terminate Employee for cause under this Agreement, the parties agree that such termination from employment shall be deemed a termination without cause, and the provisions of paragraph 8(a) shall apply in their entirety. (d) The Employee may terminate this Agreement at any time upon giving Employer at least ninety (90) days written notice in advance, unless the parties agree otherwise. The Employee shall receive compensation for his unused vacation and sick leave accrued through the termination date under the same terms and conditions as any other City employee. Employee shall not be entitled to any additional compensation or severance pay. (e) In the event Employer at any time during the term of this Agreement reduces the salary or other financial benefits of Employee in a greater percentage than that applicable to an across-the-board reduction for all employees of the Employer, or in the event Employer refuses, following written notice to comply with any other ~~ritten provision benefitting Employee herein, then in that event Employee may, at his option, resign and be deemed to have been "terminated without cause" for purposes of applying paragraph 8 (a). (f) In the event of the death of the Employee during the term of this Agreement, this Agreement shall automatically terminate and the Employer shall pay to his surviving spouse, if any, or if the Employee does not have a surviving spouse, to the estate of the Employee, an amount equal to the portion of the Employee's salary to which he was entitled through the date of this death, plus accrued sick and vacation time and any other applicable death benefits provided to other employees of Employer. 9. 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. Page 5 of 7 (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 Orange County, Florida. (e) 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. (f) 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. (g) 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. (h) 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: KEVIN L. SMITH STATE OF FLORIDA 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 KEVIN L. SMITH, 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 2009. NOTARY PUBLIC Page 6 of 7 EMPLOYER: By: John F. Bush, Mayor ATTEST: Andrea Lorenzo-Luaces, 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: June 22, 2009. Page 7 of 7 CITY MANAGER'S EMPLOYMENT AGREEMENT THIS AGREEMENT, made this 22nd day of June, 2009, between the CITY OF WINTER SPRINGS, FLORIDA, a Florida municipal corporation (hereinafter referred to as the "Employer" or "City") and KEVIN L. SMITH (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, after the resignation of the former City Manager in January of 2009, Employee had been serving as the interim City Manager of Winter Springs; and WHEREAS, on May 26, 2009, the City Commission formally appointed Employee the City Manager of Winter Springs; 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 City Manager and is desirous of becoming the 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 City Manager of Winter Springs, Florida. 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 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 Page 1 of 7 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. The term of this Agreement shall commence retroactively to the date of appointment on May 26, 2009 and shall continue until terminated by either Employer or Employee as provided herein. 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 Thirty-Two Thousand and No/100 Dollars ($132,000.00), 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 compensory 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. (b) Retirement Plan. The Employer agrees to provide Employee the same retirement benefits provided to other City employees. (c) Automobile Allowance. The Employer agree to provide Employee an automobile allowance equal to Three Hundred and No/ 100 Dollars ($300.00) per month to reimburse the Employee for his automobile expenses. Said allowance shall be to reimburse the Employee for local travel only, defined as travel within the area covered by the Tri-County League of Cities including Seminole County. All travel outside of the aforementioned area shall be reimbursed at a cents-per-mile rate equal to that provided by IRS business guidelines or rate provided to regular City employees, subject to applicable statutory limitations. Page 2 of 7 (d) Life, Health, and Disability Insurance. The Employer agrees to provide Employee term life insurance, health insurance coverage, and disability insurance coverage equal to that which is provided to other City employees. 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. Employee shall be entitled to the same vacation time, sick leave, holidays and other benefits provided to other City employees. (c) Professional Association Dues. Employer shall pay the dues for the International City/County Management Association (ICMA) and the Florida City and County Management Association (FCCMA) and Employee's other reasonable professional associations and memberships as approved by the City Commission. The foregoing shall be subject to the needs of the City and budgetary appropriation by the City Commission. (d) Professional Development. Employer hereby agrees to budget for and pay for travel and subsistence expenses of Employee for professional and official travel to include ICMA, FCCMA and Florida League of Cities annual conferences and any other conferences or seminars approved by the City Commission. The payment of such expenses shall be in accordance with the City's travel policy, as amended from time to time, or as otherwise approved by the City Commission. The foregoing shall be subject to the needs of the City and budgetary appropriation by the City Commission. 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 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 Page 3 of 7 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 by law, 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. 7. Evaluation. (a) The City Commission shall review and evaluate the performance of the Employee at least once annually. Said review and evaluation shall be in accordance with specific performance criteria that is developed jointly by the City Commission and Employee. Once initially developed, the criteria may be modified as the City Commission and Employee may from time to time mutually determine. The initial evaluation under this Agreement shall be due and completed on May 24, 2010, and subsequent reviews and evaluations shall occur each year thereafter on or about the anniversary date of the initial evaluation. (b) In furtherance of defining the performance criteria, the City Commission and Employee shall annually define such goals and performance objectives that they deem necessary for the proper operation of the City and in the attainment of City Commission's policy goals and objectives. The relative priority among the various goals and objectives shall be reduced to writing. They shall generally be handled the time limitations as specified and the annual operating and capital budgets and appropriations provided. (c) The parties recognize that Employee's performance evaluation by the City Commission may not occur exactly on the anniversary date, but it will likely coincide with the regular meeting schedule of the City Commission. 8. Termination and Severance Pay. (a) The Employee shall serve at the pleasure of the Employer. The City Commission reserves the right at any time in its sole discretion and for any reason whatsoever, or for no reason, to terminate Employee's employment at a duly held public meeting. If the Employee is terminated at the pleasure of the City Commission pursuant to this subparagraph (a), without cause, the Employee shall receive severance pay equal to three (3) months current salary, plus an additional one-half ('/z) month current salary for each completed year of employment as city manager starting on the effective date of this Agreement; provided, however, the maximum severance pay shall not exceed six (6) months of current salary. In addition, Employee shall be entitled to any accrued vacation and sick leave under the same terms and conditions as any other City employee. (b) Employee agrees that the City Commission shall have the sole and absolute discretion to decide upon such termination under subparagraph 8 (a). In the event of such termination, the Employee waives all rights to contest or challenge the City Commission's decision Page 4 of 7 and will accept the payments provided in subparagraph 8 (a) in full satisfaction of the Employer's obligations under this Agreement and in full release of any and all claims that the Employee has, or may have, against the Employer, and its City Commission, employees, and City Attorney, both individually and in their official capacity, under this Agreement. (c) If the Employee is terminated by the City Commission because of. (1) a formal felony charge filed against him by the State or U.S. attorney or conviction of a felony; (2) misfeasance, malfeasance, or neglect of duty; (3) failure to carry out the duties assigned under this Agreement, City Charter, or law; (4) conviction of a violation of the Florida Ethics Laws or any illegal act involving personal gain to him; (5) abandonment of the Office of City Manager; (6) habitual drunkenness; or (7) permanent inability to perform his official duties as city manager, then the Employee shall not be entitled to any severance pay. If City Commission terminates Employee for cause pursuant to this subparagraph (c), the Employee's sole legal remedy is an action in the court of appropriate jurisdiction and venue. If said court determines that the City Commission did not properly terminate Employee for cause under this Agreement, the parties agree that such termination from employment shall be deemed a termination without cause, and the provisions of paragraph 8(a) shall apply in their entirety. (d) The Employee may terminate this Agreement at any time upon giving Employer at least ninety (90) days written notice in advance, unless the parties agree otherwise. The Employee shall receive compensation for his unused vacation and sick leave accrued through the termination date under the same terms and conditions as any other City employee. Employee shall not be entitled to any additional compensation or severance pay. (e) In the event Employer at any time during the term of this Agreement reduces the salary or other financial benefits of Employee in a greater percentage than that applicable to an across-the-board reduction for all employees of the Employer, or in the event Employer refuses, following written notice to comply with any other written provision benefitting Employee herein, then in that event Employee may, at his option, resign and be deemed to have been "terminated without cause" for purposes of applying paragraph 8 (a). (f) In the event of the death of the Employee during the term of this Agreement, this Agreement shall automatically terminate and the Employer shall pay to his surviving spouse, if any, or if the Employee does not have a surviving spouse, to the estate of the Employee, an amount equal to the portion of the Employee's salary to which he was entitled through the date of this death, plus accrued sick and vacation time and any other applicable death benefits provided to other employees of Employer. 9. 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. Page 5 of 7 (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) 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. (f) 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. (g) 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. (h) 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: VIN L. (SMITH STATE OF FLORIDA 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 KEVIN L. SMITH, 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 _, 2009. OTARY PUBLIC NEE ate of Florida Page 6 of 74OD768883 01 2 EMPLOYER: By: Yon F. Bush, Mayor ATTEST: Lorenzo-Luaces, City Clerk APPROVED AS TO FORM AND LEGAL SUFFICIENCY FOR THE CITY OF WINTER SPRINGS ONLY: 61?- Anthony A. Garganese, City Attorney Approved by the City Commission on: June 22, 2009. Page 7 of 7