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HomeMy WebLinkAbout2012-05-07-Resolutions 12-109_City Administrator - Resignation-SeveranceTHE CITY OF WAUKEE,IOWA RESOLUTION 12-109 A RESOLUTION REGARDING EMPLOYMENT CONTRACT OF THE CITY ADMINISTRATOR IN THE NAME AND BY THE AUTHORITY OF THE CITY OF WAUKEE,IOWA WHEREAS,Jeffrey L.Kooistra,the City Administrator of the City of Waukee resigned his position with the City effective May 7,2012;and WHEREAS,a separation agreement and release ("Agreement")has been presented to the City by Mr.Kooistra with his resignation;and WHEREAS,the City Council of the City ofWaulcee 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 Resignation of the City Administrator and Agreement between the City of Waukee and Jeffrey L.Kooistra,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 7'h day of May,2012. Attest: ~~.5S~-Rebecca D.Schuett,Deputy CIty Clerk ROLL CALL VOTE Shane Blanchard Dan Dutcher Casey L.Harvey Shelly Hughes Mike Watts AYE X X X X X NAY ABSENT ABSTAIN EXHIBIT A SEPAHATION AGREEMENT AND RELEASE OF CLAIMS This SEPARATION Agreement and Release of Claims ("Agreement")is made and entered into by and between the City of Waukee ("City"),and Jeff Kooistra ("Kooistra"). 1.SEPARATION.Kooistra's employment with the City shall be terminated via resignation effective May 7,2012 ("SEPARATION Date").The City shall pay Kooistra's regular salary and benefits,less applicable withholding and deductions, through the SEPARATION Date. (a)"Claims"means all theories of recovery of whatever nature,whether known or unknown,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 an employment contract or agreement,the common law or under any other contract or statute,as well as any claim for salary,benefits or other compensation.This term includes,but is not limited to,any claims of discrimination,breach of contract,harassment,retaliation,retaliatory discharge,or wrongful discharge,and any other claim that is alleged or that could be alleged by Kooistra,or on Kooistra's behalf,in any lawsuit or other proceeding.This term further includes,but is not limited to,claims and rights arising under state,federal or local laws, such as Title VII of the Civil Rights Act,the Americans with Disabilities Act Amendments Act,the Fair Labor Standards Act,the Older Workers'Benefit Protection Act,the Age Discrimination in Employment Act,Iowa Wage Payment Collection Law, and/or the Iowa Civil Rights Act. (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 Kooistra,or on Kooistra's behalf,in any lawsuit or other proceeding.This tenn includes,but is not limited to,actual, incidental,indirect,consequential,compensatory,exemplary,liquidated and puuitive damages;rescission;attomeys'fees;interest;costs;equitable relief;and expenses. (c)"Released Parties"means and includes the City,City Conncil and any and all related boards and entities,as well as all of the foregoing entities'present and future Mayors,council members,attorneys,agents,appointees,employees and staff,in both their representative and individual capacities.Each of the Released Parties is an intended beneficiary of this Agreement. shall: 3.Consideration.In consideration for Kooistra's promises herein,the City (a)pay Kooistra severance in an amount equal to six (6)months wages,in twelve (12)semi-monthly instahnents,minus applicable withholdings and deductions. The payments shall be made to Kooistra in accordance with the City pay policy via ACH Page 1 of6 Initials:jL! I on the 5th and 20th day of each month beginning on either May 20,2012 or June 5, 20l2--depending upon the date of the expiration ofthe seven (7)day revocation period; (b)pay Kooistra an amount equal to $21,224.77 in payment for his three hundred sixty (360)accrued but unused vacation hours.This payment shall be mailed to Kooistra on or before November 30,2012; (c)continue to pay the City's portion of Kooistra's current health and vision insurance benefits for him and his wife from May 7,2012,through November 30,2012. Kooistra would,if otherwise eligible,be able to elect to continue the City's insurance benefits at his own cost in accordance with COBRA after November 30,2012; (d)not contest a claim or receipt of unemployment benefits by Kooistra from the Iowa Unemployment Insurance Division ofIowa Workforce Development;and (e)defend and hold Kooistra harmless,through insurance or otherwise,from any Claim brought against him arising from acts or omissions of Kooistra in the course and scope of his employment with the City to the extent allowed by law,except any Claim based on the intentional miscondnct of Kooistra. 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.None of the Consideration shall be paid or provided to Kooistra until after the expiration of the revocation period nor shall any further payments be made if Kooistra breaches this Agreement. (a)Kooistra releases and discharges the Released Parties from all Claims and Damages,inclnding those related to,arising from or attributed to:(1)Kooistra's employment with the City;(2)the SEPARATION 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 Agreement. (b)Kooistra 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,attrihutable to,or related to Kooistra's employment with the City,the SEPARATION 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 Agreement,and that all such Claims are hereby expressly settled or waived. (c)Kooistra further 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 and/or the Age Discrimination in Employment Act. (d)Kooistra agrees not to bring,or cause to be brought,any Claims against any of the Released Parties in any court or before other authority,or accept any Damages Initials:/;7:/.I ' v Page 2 of6 for any Claims against any of the Released Parties,which Claims are related to,arising from or attributed to Kooistra's employment with the City,the SEPARATION of such employment or service,and any other matter covered by this releases in this Agreement. Kooistra 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.City Releases. (a)The City,on behalf of the Released Parties,releases and discharges Kooistra from all Claims and Damages,including those related to,arising from or attributed to:(1)Kooistra's employment with the City;(2)the SEPARA TION 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 Agreement,excepting intentional misconduct on the part of Kooistra. (h)The City,on behalf of the Released Parties,understands and expressly agrees this release exteuds 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 Kooistra's employment with the City,the SEPARATION of such employment or service,or any alleged action or inaction of Kooistra prior to and including the date of his execution of this Agreement,and that all such Claims are hereby expressly settled or waived. (c)The City,on behalf of the Released Parties,agrees not to bring,or cause to be brought,any Claims against Kooistra in any court or before ally other authority,or accept any Damages for any Claims against any of the Released Parties,which Claims are related to,arising from or Kooistra attributed to Kooistra's employment with the City, the SEPARA TION of such employment or service,and any other matter covered by the releases in this Agreement.The City,on behalf of the Released Parties,represents and warrants that none of them have brought or caused to be brought any such Claims,or accepted any such Damages for any such Claims,against Kooistra. 6.Warranties, (a)By Kooistra.Kooistra agrees,represents and warrants that: (i)the aforementiond Consideration is not something to which he is otherwise indisputably entitled,is good and sufficient consideration for his execution of this Agreement,and is paid by the City,on behalf of the Released Patties,in full satisfaction and settlement of any Claims and Damages;he is legally and mentally competent to sign this Agreement;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 Agreement,and no portion of any existing or potential Claims has been sold,assigned, pledged or hypothecated by him to any third party;he presently possesses the exclusive right to receive all of the Consideration paid in exchange for this Agreement; Page 3 of6 17//Initials:;.,LA / (ii)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 Kooistra as required by law; (iii)he does not possess any rights or claims to future employment with the City after the SEPARATION Date,and agrees not to seek employment with the City; and (iv)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 (l)interviews of Kooistra by legal counsel for the City,(2)Kooistra providing documents (or copies thereof)and executing affidavits,(3)Kooistra appearing for depositions,trials,and other proceedings,and (4) Kooistra refusing to communicate with any party adverse to the City,or with a representative,agent or legal counsel for any such party,conceming 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 Kooistra to testify other than truthfully in any proceeding or affidavit.Kooistra shall be reasonably compensated for his time and expenses in connection with this paragraph. (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 Kooistra;provided that this Section shall not apply to comments as required by law. (ii)it shall not,unless otherwise authorized by Kooistra, respond to any inquiries by,or discuss with,any person or entity,including prospective employers,conceming or relating to Kooistra's employment 'With the City or his resignation therefrom or the circumstances giving rise to this Agreement 7.Public Statement Upon execution of this Agreement by the parties hereto, and approval thereof by the City Council,the parties may make a mutually agreeable public statement concerning Kooistra's resignation.In addition,Kooistra will be provided a letter of reference from the Mayor in a form acceptable to Kooistra. 8.Choicc of Law.This Agreement shall be interpreted and construed in accordance with and shall be governed by the laws of the State ofIowa (without regard to any conflicts of law principle which would require the application of some other state law)and,when applicable,the laws of the United States. 9.Entire Agreement This Agreement constitutes the entire agreement of the parties relating to the subject matter hereof Any previous agreements with respect to this subject matter and/or Kooistra's employment are superseded by this Agreement and are of no further force or effect No term,provision or condition of this Agreement may be modified in any respect except by a writing executed by both Kooistra and the City.No person has any authority to make any representation or promise on behalf of any of the Page 4 of6 ..l-7r1··Imtlals:.,~IJ." parties not set f011hin this Agreement.This Agreement has not been executed in reliance upon any representation or promise except those contained herein. 10.Acknowledgement of Terms.Kooistra acknowledges that he has carefully read this 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 Released Parties admit to no wrongdoing in connection with Kooistra's employment,the SEPARATION of such employment or service,or any other matter covered by this release;that this Agreement is intended as a compromise of all Claims which Kooistra has alleged or may allege against any of the Released Parties;that the only promises or representations made to Kooistra to sign this Agreement are those stated herein;and that he is signing this Agreement voluntarily. 11.Waiver.The failure of either party to enforce or to require timely compliance with any term or provision of this 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 Agreement. 12.Severability.Each part,term or provision of this 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 Agreement has been made with the clear intention that the validity and enforceability of the remaining parts,terms and provisions shan not be affected thereby, 13.Cost~.and Attorneys'Fees.If either the City or Kooistra initiates action to enforce this Agreement the prevailing party shall be entitled to recover its reasonable costs and attorneys'fees. 14.Construction.This Agreement shall be deemed drafted equally by all the parties and its language shall be construed as a whole and according to its fair meaning. Any presumption or principle that the language is to be construed against any party shall not apply.The headings in this Agreement are only for convenience and are not intended to affect construction or interpretation.This Agreement represents a compromise of dispnted Claims and is not to be construed as an admission,direct or indirect,against any interest of the parties.The plural includes the singnlar 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 each "without limitation;"and "herein,""hereof,""hereunder"and other similar compounds of the word "here"refer to the entire Agreement and not to any particular paragraph,subparagraph,section or subsection. 15.Timing and Consultation.Kooistra understands he has been advised to consult with an attorney for advice prior to executing this Agreement and that he has a period of twenty-one (21)days from the date he received this Agreement to consider and execute the Agreement.Kooistra further understands that he has the right to execute this Agreement before the end of said twenty-one (21)day period,but is under no obligation Page 5 of6 to do so.Should Kooistra decide to execute the Agreement,he shall have the right to revoke this Agreement within seven (7)days following the date on which he signs it,and the Agreement shall not become effective or enforceable-and no consideration shall be paid-i-until this seven (7)day period has expired without revocation. 15.Counterparts.This Agreement and any amendments hereto may be executed in multiple counterparts by the patties.Each counterpart shall be deemed an original,but all counterparts together shall constitute one and the same instrument. The City of Waukee By:William F.Peard Title:Mayor Date: ACKNOWLEDGMENT STATE OF IOWA ) ) COUNTY OF DALLAS ) 2012. This instrument was signed before me by.J~~~@~tl\~on this J.~day of May, Page 6 of6 Initials: to do so.Should Kooistra decide to execute the Agreement,he shall have the right to revoke this Agreement within seven (7)days following the date on which he signs it,and the Agreement shall not become effective or enforceable-s-and no consideration shall be paid-until this seven (7)day period has expired without revocation 15.~oullt"rparts.This Agreement and any amendments hereto may be executed in multiple c.ounterparts by the parties.Each counterpart shall be deemed an original,but all counterparts together shall constitute one and the same instrument. The City of Waukee /,~··..~.../~t~ y:Wilt['Jl11 F.P 'aId Title:Mayor Date:_!is/oj (Xii d. Jeffrey 1.Kooistra Date:~~~_._ ACKNOWLEDGMENT STATE OF lOW A ) ) COUNTY OF DALLAS ) This instrument was signed before me by William F.Peard on this 1!1tday of May,2012. ~jf,.~~. Notary Public in and for the Stateof Iowa My Commission Expires:.~'5JJ'f).tgf.l~.. Page 6 of6 Initials: