HomeMy WebLinkAbout2005-11-30-Resolutions 05-221_City Administrator - Resignation-SeveranceTHE CITY OF WAUKEE,IOWA
RESOLUTION 05-221
A RESOLUTION ACCEPTING THE RESIGNATION OF THE CITY
ADMINISTRATOR,APPROVING SEVERANCE AGREEMENT WITH
THE CITY ADMINISTRATOR AND AUTHORIZING THE MAYOR TO
EXECUTE SAID AGREEMENT ON BEHALF OF THE CITY.
WHEREAS,Mark Arentsen,the City Administrator of the City of Waukee will resign
his position with the City effective December 31,2005 and the City Council has reviewed and
approved said resignation;and
WHEREAS,the City Council of the City of Waukee has reviewed and approved a
severance agreement with Mr.Arentsen ("Agreement");and
WHEREAS,the City Council of the City of Waukee believes the Agreement to be in the
best interest of all parties,as well as is in the public interests of the City of Waukee.
NOW,THEREFORE,be it resolved by the City Council of the City of Waukee,Iowa,
that the Agreement between the City of Waukee and Mark Arentsen,in the form attached hereto
as Exhibit "A,"is hereby approved and accepted.Further,the Mayor and Deputy City Clerk are
hereby authorized to execute said Agreement on behalf of the City of Waukee.
Approved and adopted this 30th day of November 2005.
Moved by Council Member Stanton,Seconded by Council Member Gruber to adopt.
Attest:
~tf).~c4ud:t~
Rebecca D.Schuett,Deputy City Clerk
ROLL CALL VOTE
Nicholas C.Gruber
Donald L.Bailey,J1'.
Bill Peard
JeffV.Mertz
Darlene Stanton
NAY ABSENTAYE
X
X
X
X
X 1
TERMINATION AGREEMENT AND RELEASE OF CLAIMS
This Termination Agreement and Release of Claims ("Termination Agreement")IS
made and entered into by and between the City of Waukee ("City"),and Mark Arentsen
("Arentsen").
1.Termination,Arentsen's employment with the City shall be terminated VJa
resignation effective December 31,2005 ("Termination Date").The City shall pay
Arentsens regular salary and benefits (less applicable withholding and deductions)through
the Termination Date.
2,Definitions,
(a)"Claims"means all theories of recovery of whatever nature,whether known or
unknown,and now recognized by the law or equity of any jurisdiction,This term includes
causes of action,charges,indebtedness,losses,claims,liabilities,and demands,whether
arising in equity or under the cornmon law or under any contract or statute,This term
includes any claim fOTsalary,benefits or other compensation,nus term includes,but is not
limited to,any claims of discrimination,harassment,retaliation,retaliatory discharge,or
wrongful discharge,and any other claim that is alleged or that could be alleged by Arentsen,
or on Arentsen's behalf,in any lawsuit or other proceeding,This term includes,but is not
limited to,claims and rights arising under Title VII of the Civil Rights Act of 1964,(42
U.S,C,§2000e,et seq.i,the Employee Retirement Income Security Act of 1974,(29 U,S,c.§
1001,et seq),the Federal Rehabilitation Act of 1973,(29 U,S,c.§701,et seq.],the
Americans With Disabilities Act,(42 U.S,C,§12101,et seq.i,the Fair Labor Standards Act
of1938,(29 U.S,C,§201,et seq,),the Labor -Management Relations Act,(29 U.S,C.§141,
et seq.v;the Federal Occupational Safety and Health Act,(29 U.S,c.§651,et seq.v,the Fair
Credit Reporting Act (15 U.S,C,§1681,et seq.y;the Older Workers'Benefit Protection Act,
(29 U.S.c.§621,et seq.i,the Age Discrimination in Employment Act,(29 U.S.C.§621,et
seq,),the Family and Medical Leave Act (29 U.S,C,§2601,et seq.i,Iowa Wage Payment
Collection Law (Iowa Code §91A.1,et seq.i,and the Iowa Civil Rights Act (Iowa Code §
216.1,et seq,),'
(b)"Damages"means all elements of relief or recovery of whatever nature,
whether known or unknown,which are recognized by the law or equity of any jurisdiction
that is sought or that could be sought by Arentsen,or on Arentsen's behalf,in any lawsuit or
other proceeding,This term includes actual,incidental,indirect,consequential,
compensatory,exemplary,liquidated and punitive damages;rescission;attorneys'fees;
interest;costs;equitable relief;and expenses,
(c)"Released Parties"means and includes the City,City Council and any and all
related boards and entities,as well as all of the foregoing entities'present and future mayors,
council members,attorneys,accountants,engineers,agents,appointees,employees and staff,
in both their representative and individual capacities,Each of the Released Parties is an
intended beneficiary of this Termination Agreement.
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3.Consideration.In consideration for Arentseri's promises herein,the City shall:
(a)pay Arentsen severance in an amount equal to three months wages minus
applicable withholdings and deductions.The payments shall be mailed to Arentsen in three
equal monthly installments on January 31,2006;February 28,2006;and March 31,2006;
(b)pay Arentsen an amount equal to his accrued but unused vacation benefit.This
payment shall be mailed to Arentsen on April 28,2006;
(c)continue Arentsen's current health insurance and retirement benefits through
April 30,2006;and
(d)not contest a claim or receipt of unemployment benefits by Arentsen from the
Iowa unemployment services division of Iowa Workforce Development.
(e)defend and hold Arentsen harmless (through insurance or otherwise)from any
Claim brought against him arising from acts or omissions of Arentsen in the course and scope
of his employment with the.City to the extent allowed by law,except any Claim based on the
intentional or grossly negligent misconduct of Arentsen.
The consideration set forth in this Section is collectively referred to as
"Consideration."The Consideration shall be reported to the Internal Revenue Service in
accordance with applicable law.The consideration set forth herein shall be provided
irrespective of whether Arentsen obtains other employment,except Arentsens receipt of
unemployment shall be governed by the laws of the State ofIowa.None of the Consideration
shall be paid or provided to Arentsen should he revoke this Termination Agreement.
]
4.Arentsen Releases.
(a)Arentsen releases and discharges the Released Parties from all Claims and
Damages,including those related to,arising from or attributed to (I)Arentsen's employment
with the City,(2)the termination of such employment or service,and (3)all other acts or
omissions related to any matter at any time prior to and including tbe date of his execution of
this Termination Agreement.
(b)Arentsen understands and expressly agrees this release extends to all Claims of
every nature and kind,known or unknown,suspected or unsuspected,past,present or future,
which Claims are arising from,attributable to,or related to Arentsen's employment with the
City,the termination of such employment or service,or any alleged action or inaction of the
Released Parties prior to and including the date of his execution of this Termination
Agreement,and that all such Claims are hereby expressly settled or waived.
(c)Arentsenfurther understands and expressly agrees that this release waives any
Claims and rights he may have against any of the Released Parties under the Older Workers'
Benefit Protection Act,(29 u.s.C.§621,et seq.),and the Age Discrimination in Employment
Act,(29 u.s.c.§62],et seq).I
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(d)Arentsen agrees not to bring,or cause to be brought,any Claims against any of
the Released Parties in any court or before any arbitral authority,or accept any Damages for
any Claims against any of the Released Parties,which Claims are related to,arising from or
attributed to Arentsen's employment with the City,the termination of such employment or
service,and any other matter covered by the release in this Section,Arentsen represents and
warrants that he has not brought or caused to be brought any such Claims,or accepted any
such Damages for any such Claims,against any of the Released Parties.
5.Released Parties Releases.
(a)The Released Parties release and discharge Arentsen from all Claims and
Damages,including those related to,arising from or attributed to (I)Arentsens employment
with the City,(2)the termination of such employment or service,and (3)all other acts or
omissions related to any matter at any time prior to and including the date of his execution of
this Termination Agreement,excepting intentional misconduct and gross negligence on the
part of Arentsen.
(b)Except as otherwise provided in section 5(a)of this Agreement,the Released
Parties understand and expressly agree this release extends to all Claims of every nature and
kind,known or unknown,suspected or unsuspected,past,present or future,which Claims are
arising from,attributable to,or related to Arentsen's employment with the City,the
termination of such employment or service,or any alleged action or inaction of the Released
Parties prior to and including the date of his execution of this Termination Agreement,and
that all such Claims are hereby expressly settled or waived.
(c)The Released parties agree not to bring,or cause to be brought,any Claims
against Arentsen in any court or before any arbitral authority,or accept any Damages for m1Y
Claims against any of the Released Parties,which Claims are related to,arising from or
Arentsen attributed toArentscn's employment with the City,the termination of such
employment or service,and m1Y other matter covered by the release in this Section,The
Released Parties represent and warrant that they,nor any of them,have not brought or caused
to be brought any such Claims,or accepted any such Damages for any such Claims,against
Arentsen,
6,Warranties.
(a)By Arcntsen.Arentsen agrees,represents and warrants that:
(i)the Consideration is not something to which he is otherwise
indisputably entitled,is good and sufficient consideration for his execution of this
Termination Agreement,and is paid by or on behalf of the Released Parties in full satisfaction
and settlement of any Claims and Damages;
(ii)he is legally and mentally competent to sign this Termination
Agreement;
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(iii)he is the sole owner of any Claims that have been or could have been
asserted,he has the requisite capacity and authority to make this Termination Agreement,and
no portion of any existing or potential Claims has been sold,assigned,pledged or
hypothecated by him to any third party;I
(iv)he presently possesses the exclusive right to receive all of the
Consideration paid in exchange for this Termination Agreement;
(v)he shall not make disparaging remarks about,or slander or libel the
City or the other Released Parties;provided that this Section shall not apply to comments
made by Arentsen to any governmental entity or as required by law;
(vi)he does not possess any rights or claims to future employment with the
City after the Termination Date,and agrees not to seek employment with the City;and
(vii)he will cooperate with,and assist,the City in defense of any claim,
litigation or administrative proceeding brought against the City or any other Released Parties,
related to or arising out of matters which occurred during his employment with the City,Such
cooperation and assistance shall include (1)interviews of Arentsen by legal counsel for the
City,(2)Arentsen providing documents (or copies thereof)and executing affidavits,(3)
Arentsen appearing for depositions,trials,and other proceedings,and (4)Arentsen refusing to
communicate with any party adverse to the City,or with a representative,agent or legal
counsel for any such party,concerning any pending or future claims or litigation or
administrative proceeding other than through legal counsel for the City,Nothing in this
Paragraph is intended to cause Arentsen to testify other than truthfully in any proceeding or
affidavit.
I
(b)By the City,The City agrees,represents and warrants that:
(i)it shall not,and shall not authorize any person,to make disparaging
remarks about or libel or slander Arentsen;provided that this Section shall not apply to
comments made to any governmental entity or as required by law,
(ii)it shall not,unless otherwise authorized by Arentsen,respond to any
inquiries by,or discuss with,any person or entity,including prospective employers,
concerning or relating to Arentsen's employment with the City or his resignation therefrom or
the circumstances giving rise to this Agreement,other than to confirm the dates of Arentsen's
employment with the City and to state that he resigned therefrom effective December 31,
2005,
7,Public Statement.Upon execution of this Agreement by the parties hereto,and
approval thereof by the City Council,Arentsen may make a public statement concerning his
resignation substantially in the form attached hereto,
7.Choice of Law,This Termination Agreement shall be interpreted and
construed in accordance with and shall be governed by the laws of the State of Iowa (without I
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regard to any conflicts of law principle which would require the application of some other
state law)and,when applicable,the laws ofthe United States,
8,Entire Agreement.This Termination Agreement constitutes the entire
agreement of the parties relating to the subject matter hereof Any previous agreements with
respect to this subj ect matter are superseded by this Termination Agreement and are of no
further force or effect.No term,provision or condition of this Termination Agreement may
be modified in any respect except by a writing executed by both Arentsen and the City,No
person has any authority to make any representation or promise on behalf of lily ofthe parties
not set forth in this Termination Agreement.This Termination Agreement has not been
executed in reliance upon any representation or promise except those contained herein,
9,Acknowledgement of Terms,Arentsen acknowledges that he has carefully
read this Termination Agreement;that he has had the opportunity for review of it by his
attorney;that he fully understands its final and binding effect;that the City admits to no
wrongdoing in connection with Arentsen's employment,the termination of such employment
or service,or lily other matter covered by this release;that this Termination Agreement is
intended as a compromise of all Claims which Arentsen has alleged or may allege against any
of the Released Parties;that the only promises or representations made to Arentsen to sign
this Termination Agreement are those stated herein;and that he is signing this Termination
Agreement voluntarily,
10,Waiver.The failure of either party to enforce or to require timely compliance
with any term or provision of this Termination Agreement shall not be deemed to be a waiver
or relinquishment of rights or obligations arising hereunder,nor shall this failure preclude the
enforcement of any term or provision or avoid the liability for any breach of this Termination
Agreement.
11.Severability,Each part,term or provision of this Termination Agreement is
severable from the others,Notwithstanding any possible future finding by a duly constituted
authority that a particular part,term or provision is invalid,void or unenforceable,this
Termination Agreement has been made with the clear intention that the validity and
enforceability ofthe remaining parts,terms and provisions shall not be affected thereby,
12,Costs and Attorneys'Fees,If either the City or Arentsen initiates action to
enforce this Termination Agreement the prevailing party shall be entitled to recover from its
reasonable costs and attorneys'fees,
13,Construction,This Termination Agreement shall be deemed drafted equally by
all the parties,Its language shall be construed as a whole and according to its fair meaning,
Ally presumption or principle that the language is to be construed against lily party shall not
apply,The headings in this Termination Agreement are only for convenience and are not
intended to affect construction or interpretation,This Termination Agreement represents a
compromise of disputed Claims and is not to be construed as an admission,direct or indirect,
against any interest of the parties,The plural includes the singular and the singular includes
the plural;"and"and "or"are each used both conjunctively and disjunctively;"any,""all,"
"each,"or "every"means "any and all,and each and every;""including'and "includes"are
PageS of 5 Initials:\v~1D (liJ?.::=J
each "without limitation;"and "herein,""hereof,""hereunder"and other similar compounds
of the word "here"refer to the entire Termination Agreement and not to any particular
paragraph,subparagraph,section or subsection,
,I
14,Timing,Arentsen understands he has been advised to consult with an attorney
for advice prior to executing this Agreement and that he has a period of 21 daysfrom the date
he received this Agreement to consider and execute the Agreement.Arentsen further
understands that he has the right to execute this Agreement before the end of said 21-day
period,but is under no obligation to do so,Should Arentsen decide to execute the Agreement,
he shall have the right to revoke this Agreement within seven days following the date on
which he signs it,and the Agreement shall not become effective or enforceable-and no
consideration shall be paid-until this seven-day period has expired without revocation,
The City of Waukee
By:----I'-JL-''+-:-¥-~_
Title:---L__I-"--~r+-i----=-_
Date:-L'4~'-"'-~---
ACKNOWLEDGMENT
STATE OF IOWA
jiJru.-/rS
COUNTY OF POL*
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)
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This instrument was signed before me by leM:'!O~~41o\on this ("'~day of
QtUl4lbW ,2005.
Notary Public in and for the State ofIowa
My Commission Expires:0')1/3/0 '6,J
:i"'to,REBECCA D.SCHUETT~r-Commission Number 716496
••My Commission Expires
ow May 13,2008
I
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