Loading...
HomeMy WebLinkAboutMichael Guild-7/28/2014CITY OF WATERLOO Council Communication City Council Meeting: July 28, 2014 Prepared: July 22, 2014 Dept. Head Signature: Suzy Schares # of Attachments: 1 SUBJECT: Settlement Agreement with Michael Guild Submitted by: Suzy Schares, City Clerk/Human Resources Director Recommended City Council Action: Resolution to approve settlement agreement with Michael Guild. Summary Statement: Expenditure Required: TBD Source of Funds Policy Issue Alternative Background Information: The City of Waterloo mutually agreed during mediation to provide severance benefits as to resolve overtime payment issues/retirement. SETTLEMENT AGREEMENT, GENERAL RELEASE, AND COVENANT NOT TO SUE BETWEEN MICHAEL GUILD AND THE CITY OF WATERLOO The City of Waterloo (the "City") and Michael Guild, on behalf of himself, his heirs, executors, successors, and assigns ("Guild"), hereby enter into this Settlement Agreement, General Release, and Covenant Not to Sue ("Agreement"): WHEREAS, Guild was employed by the City as Facilities Manager for the Center for Performing Arts, commencing on April 23, 1980 and ending on April 21, 2014. WHEREAS, Guild appealed his termination to the Waterloo Civil Service Commission, and has threatened additional litigation, including but not limited to, litigation under the Fair Labor Standards Act ("FLSA"); WHEREAS, Defendants have denied, and continue to deny, in their entirety, Guild's allegations of wrongdoing; WHEREAS, no evidentiary hearing has been held on the merits of any of Guild's claims; and WHEREAS, all parties desire to settle all potential outstanding issues between them, whether the subject of the above Action or otherwise, on an amicable basis on the terms and conditions stated in this Agreement. NOW, THEREFORE, the City and Guild agree as follows: 1. DISMISSAL WITH PREJUDICE OF ALL CLAIMS. Before negotiating the check referred to in paragraph 6 below, Guild will dismiss his Civil Service Appeal with prejudice. 2. RELEASE. Guild fully and forever releases and discharges the City and each of its partners, subsidiaries and affiliated entities, and each of their partners, principals, stockholders, 1 directors, officers, employees, agents, trustees, pension plan trustees and administrators, contractors, consultants, and attorneys, whether past, present, or future, and all predecessors, successors, and assigns thereof, ("Released Parties") from any and all claims, demands, agreements, causes of action, injunctions, and restraints or liabilities of whatever kind, whether in law, equity, or otherwise, and whether now known or unknown or which have ever existed or now exist, including, but not limited to, claims, liabilities, or causes of action relating to or arising out of Guild's recruitment, hiring, employment, transfer or separation from employment with the City, the Age Discrimination in Employment Act, 29 U.S.0 § 621 et. seq., as amended by the Older Workers Benefit Protection Act of 1990; Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq., 42 U.S.C. ' 1981; the Civil Rights Act of 1991; the Americans With Disabilities Act, 42 U.S.C. §§ 12101 et. seq.; the Fair Labor Standards Act, 29 U.S.C. §§ 20I et seq.; the Family and Medical Leave Act, 29 U.S.C. 2601 et. seq.; the Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C. §§ 1001 et seq.; the Iowa Civil Rights Act, as amended, Iowa Code §§ 216 et seq.; Wage Payment Collection, Iowa Code Ch. 91A; Continuation and Conversion of Group Health Insurance, 26 U.S.C. § 4980B (COBRA); Iowa Code Chapter 509B; claims under any local rule, state or federal statute, and claims under common-law, promissory estoppel, claims for breach of contract, claims for any tort, claims for any wrongful discharge, or any other claims which could have been but have not been asserted. Guild acknowledges and agrees that this release and the covenant not to sue set forth in paragraph 4 are essential and material terms of this Agreement and that without such release and covenant not to sue, no agreement would have been reached by the parties. 2 3. ADEA RELEASE. Guild specifically releases the Released Parties from any claims arising under the Age Discrimination in Employment Act (hereinafter "ADEA"), 29 U.S.C. § 621 et seq., as part of the Agreement. Guild specifically acknowledges: a) He has been advised of his right to seek legal counsel prior to executing the Agreement. He acknowledges he has been advised of his right to consult with an attorney of his choice, and that he has, in fact, been represented by counsel of his choosing. b) He has had at least 21 days to consider the Agreement. His signature on the Agreement prior to the 21 day period expiring is a voluntary waiver of this time period. c) He has seven days from the date the Agreement is executed to revoke his release of the ADEA claim. d) The Agreement is written in a manner calculated to be understood by him. He does understand the Agreement. e) He has received consideration for this ADEA release which is in addition to anything of value to which he is already entitled. f) If Guild revokes his acceptance, he will notify the City's Director of Human Resources, Suzy Schares, in writing within the seven day revocation period. Such notice shall be effective either on the date of hand -delivery or if mailed, on the date of the postmark. 4. COVENANT NOT TO SUE. Guild covenants not to sue or to institute or cause to be instituted any kind of claim or action (except to enforce this Agreement) in any federal, state, or local agency or court against any of the Released Parties arising out of or attributable to her employment or termination of employment, or any other action or cause of action released under Paragraphs 2 or 3. If Guild violates this Agreement by suing any of the Released Parties for any reason for which suit is precluded by this Agreement, Guild agrees that he will pay all costs and expenses incurred by such Released Parties in defending such a lawsuit, including reasonable attorneys' fees. 3 5. NO REAPPLICATION/NO REHIRE. Guild agrees that in consideration of the payments and representations described below, he shall not seek employment, re-employment, or reinstatement with any of the Released Parties, in any capacity, whether full-time, part-time, or temporary, nor shall he be entitled to re-employment by any of the Released Parties. 6. NO ADMISSION OF WRONGDOING. This Agreement resolves all issues relating to the employment relationship between Guild and the City. This Agreement is not and shall not be construed as an admission by any of the Released Parties of any violation of the City's policies and procedures; or federal, state, or local law or regulations; or any provision of the common law. 7. PAYMENT. In consideration for the promises set forth herein, and subject to and conditioned upon Guild's performance of the conditions and undertakings set forth herein, the City, in full and final settlement of all of Guild's claims arising under the FLSA, will pay the total sum of $88,000.00, which shall be apportioned as follows: a) A check for $68,000.00, payable to Michael Guild, in full and final settlement of all of Guild's claims for damages, including any claims he has or may have under the FLSA; and b) A check for $20,000.00, payable to Frerichs Law Office, P.C. (Tax ID No. ), in payment of Guild's outstanding legal fees and costs. 8. OTHER CONSIDERATION. In addition to the payments stated in Paragraph 7, above, the City and Guild agrees to take the following actions: a) The City will reinstate Guild retroactively with back pay to the date of the termination of his employment with the City for a period of ninety (90) calendar days. b) Upon execution of this agreement, Guild will submit a written letter of resignation and retirement to the City, attached as Exhibit A, with his resignation and retirement to be effective on July 20, 2014. Guild shall remain on paid administrative leave through July 20, 2014, and shall not perform any work on behalf of the City. 4 c) Because Guild is voluntarily retiring from employment with the City, Guild agrees and acknowledges that he will not request or withdraw any unemployment insurance benefits. The City will correspondingly dismiss its appeal of Guild's original request for unemployment insurance benefits from Iowa Workforce Development. d) Upon Guild's retirement, Guild will be eligible for the City's Retiree Medical Benefit Policy, and shall be subject to the benefits and requirements of that policy. e) If the City is contacted by any prospective employer for a reference for Guild, it will provide a neutral reference including only that information which has been deemed to be a matter of public record under Iowa Code § 22.7(11). f) The parties will draft a mutually acceptable joint media statement stating that Guild has voluntarily resigned his employment with the City, and that neither party alleges any wrongdoing by the other. 9. TAXES. Guild expressly acknowledges that he is not relying on any information provided by the City, its employees, or its attorneys concerning the tax consequences of payment made under this Agreement. Guild acknowledges and agrees that he is solely and entirely responsible for the payment and discharge of all federal, state, and local taxes, if any, which may, at any time, be found to be due upon or as a result of any amount that is paid by the City under this Agreement. Guild agrees to indemnify, defend, and hold the City harmless from any claim or liability asserted against it for any taxes and related penalties or interest, relating to the manner in which the payments under Paragraph 7 are allocated and paid under this Agreement. 1. ENTIRE AGREEMENT/MEERGER/INTEGRATION. This Agreement constitutes the entire agreement, written and oral, of Guild and the Released Parties, and it supersedes and replaces all prior negotiations, proposed agreements, understandings, representations and agreements, written or oral. No party hereto is relying on any statement or representation of any other party hereto except those, if any, set forth herein. No part of this Agreement may be amended, varied, or supplemented in any respect, except by a writing duly executed by each of the Parties hereto or their authorized representatives. 5 2. COUNTERPARTS. This Agreement may be executed in one or more counterparts, all of which, taken together, shall constitute one and the same instrument. 1. SEVERABILITY. Should any term, provision or portion of any provision of this Agreement be held unenforceable for any reason, it shall be deemed severed from this Agreement, and the remainder of this Agreement shall continue to be in force in its entirety. 2. GOVERNING LAW. The interpretation and enforcement of this Agreement shall be govemed by the laws of the State of Iowa, without regard to its choice -of -law principles. 3. COUNCIL APPROVAL. This Agreement is subject to approval by the City Council. Should the Council reject or otherwise fail to accept this Agreement, this Agreement shall be deemed null and void in its entirety. 4. Guild acknowledges that he has read this Agreement, that he fully understands and appreciates the meaning of this Agreement, that it fully reflects the entirety of the agreement between the parties, that no representation, inducement, or warranty has been made to her by or on behalf of the Released Parties except as set forth herein, that he has consulted competent legal counsel of her selection with respect to this Agreement, and that he KNOWINGLY and VOLUNTARILY enters into this Agreement and agrees to comply with its terms and conditions. THIS SETTLEMENT AGREEMENT AND RELEASE CI 4UD. S A RELEASE OF ALL CLAIMS. Michae The City of Waterloo By: Its: 6 7 - (7 - Date Executed Date Executed TO: Suzy Schares, City of Waterloo Director of Human Resources FROM: Michael Guild RE: Resignation of Employment I hereby immediately resign my employment with the City of Waterloo, with my resignation date to be July 20, 2014. (if Mic aeI Guild P-/7-1 Date 8 Exhibit A AHLERS 4 COONEY, P.C. 100 COURT AVENUE, SUITE 600 DES MOINES, IOWA 50309-2231 FAx: 515-243-2149 WUWV.AHLERSLAW.COM Miriam D. Van Heukelem MVanHeukelem@ahlerslaw.com July 25, 2014 Ms. Suzy Schares City Clerk City of Waterloo 715 Mulberry Street Waterloo, Iowa 50703 RE: Michael Guild Dear Suzy: Direct Dial: 515.246.0342 Enclosed please find the Settlement Agreement, General Release, and Covenant Not to Sue between Michael Guild and the City of Waterloo. Please have the enclosed Settlement Agreement signed on behalf of the City and return the signed original agreement to my office. Please give me a call if you have questions. Very truly yours, Ahlers & Cooney, P.C. Minam D. Van Heukelem MDV:anf Enc. 01036658-1 \11310-105 WISHARO & BAILY - 1 %*:; GUERNSEY & BAILY -1893; BAILY & STIPP - 1901: STIPP, PERRY, BANNISTER & STARZINGER - 1914; BANNISTER. CARPENTER. AHLERS & COONEY - 1950; AHLERS. COONEY. DORWEILER. ALLBEE, HAYNIE & SMITH - 1974; AHLERS, COONEY, DORWEILER, HAYNIE, SMITH & ALLBEE, P.C. - 1990