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
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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
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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
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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;
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(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
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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
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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,
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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~..
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