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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. Page 1 of 5 I ',I U,,'"0 "'Ill.111tJ3S:l"SU IL'JJ,:} --.J 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 Page 2 of 5 lnitial~~~j;o ~ (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; Page 3 of 5 (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 Page 4 of 5 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* ) ) )I 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 Page6of5 lnitjals:~"lP MJj ,\