HomeMy WebLinkAboutEmployment Agreement - Horbach, RossEMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is made and entered into effective as of
October 31, 2024, by and between the Waterloo Telecommunications Utility, Waterloo, Iowa,
d/b/a Waterloo Fiber, a municipal communications utility (the "Employer"), and Ross Horbach
(the "Employee"), each of whom understand as follows:
WHEREAS, Employer desires to employ the services of Employee to serve in the capacity of
Products and Services Manager; and
WHEREAS, it is the desire of the Board of Trustees of the Waterloo Telecommunications Utility
(hereinafter the "Board"), to provide certain benefits, establish certain conditions of employment,
and set working conditions of said Employee; and
WHEREAS, it is the desire of Employer to secure and retain the services of Employee, to
provide inducement for him to continue to remain in such employment, and to provide a means
for terminating Employee's services at such time as he may be unable to fully discharge his
duties or when Employer may otherwise desire to terminate his employment; and
WHEREAS, Employee desires to be employed as Products and Services Manager of the
Waterloo Telecommunications Utility.
NOW, THEREFORE, in consideration of the mutual covenants herein contained, the parties
agree as follows:
1. Term of Agreement
1.1. Employee understands that he serves as Products and Services Manager at the discretion of
the General Manager of Telecommunications (the "General Manager"). Nothing in this
Agreement shall prevent, limit, or otherwise interfere with the right of the General Manager to
terminate the services of the Employee, at any time, subject only to the provisions set forth in
this Agreement.
1.2. This Agreement shall expire on October 31, 2029, or upon termination of Employee's
employment, whichever occurs first. The Agreement shall be renewed for an additional five-year
term unless one party delivers to the other party a written notice of non -renewal on or before
October 31, 2029.
1.3. Nothing shall prevent, limit or otherwise interfere with the right of the Employee to resign at
any time from his position with the Employer, subject only to the provisions set forth in this
Agreement.
2. Compensation
2.1. Base Salary: Employer agrees to pay Employee an annual base salary of $80,000.00 per
calendar year payable biweekly in equal installments. Effective January 1 of each calendar year,
commencing on January 1, 2025, Employee's annual base salary shall be increased by 2% as a
cost -of -living adjustment. The amount of the annual base salary shall be set by Board resolution,
which resolution, when adopted, shall become part of this section of the Agreement. This
Agreement shall be automatically amended to reflect any other salary adjustments provided or
required by the Employer's compensation policies.
2.2. Customer Sign-up Incentive Pay: In recognition of the vital role that the Employee serves in
operating the Employer's business and ensuring the timely and high-quality delivery of services
to the Employer's customers, and as an incentive for the Employee to oversee and direct a
customer -driven organization so as to subscribe and maintain the greatest number of customers
for the services offered or to be offered by the Employer, the Employer desires to offer incentive
compensation to the Employee as described in the Waterloo Fiber Incentive Compensation Plan.
Each calendar year during the term of this Agreement, the Employee shall be entitled to receive
an incentive payment (the "Incentive") calculated as set forth in said Plan. Except as set forth in
Section 2.3 below, the Employer shall pay the Incentive to the Employee no later than March 31
of the following year.
2.3. _Incentive Forfeiture and Repayment: Notwithstanding anything to the contrary in Section
2.2, Employee shall forfeit the Incentive in its entirety if, at any time before the Incentive is paid,
(a) the employment of Employee is terminated for cause, as defined in Section 5 below, or (b)
such employment is terminated for reasons other than cause but Employee has violated any of
the restrictive covenants set forth in Section 13. If, during any post -employment period in which
the restrictive covenants set forth in Section 13 are in force, the Employee is found to have
engaged in conduct that violates any of such restrictive covenants, then in the Employer's sole
discretion and upon written demand the Employee shall be required to repay to the Employer the
most recent Incentive payment received by the Employee. In addition to other methods,
repayment may occur by offset against any severance payments owed.
2.4. Employer shall not, at any time during this Agreement, reduce the base salary or other
benefits of Employee, except to the degree that such reduction occurs across-the-board for all
employees of Employer. This provision shall not apply to the incentive pay structure detailed in
Section 2.2 of this Agreement.
2.5. The Employee may be eligible to receive a one-time base salary increase of $5,000.00 after
April 30, 2025, for completion of a successful first six months of employment. The Employee
may be eligible to receive a final, one-time base salary increase of $5,000.00 after October 31,
2025, for completion of a successful first year of employment. The one-time base salary
increases shall be conditioned on completion of satisfactory six month and one-year performance
evaluations. The performance evaluations shall be conducted in accordance with Section 3 of
this Agreement.
3. Performance Evaluation
3.1. The General Manager shall review and evaluate the performance of the Employee at least
once annually. Said review and evaluation will be fair and reasonable based on the Employee's
job description on file and job performance based on criteria developed by Employer. Further,
the General Manager shall provide the Employee with a summary written statement of the
General Manager's performance review and evaluation and provide an adequate opportunity for
the Employee to discuss his evaluation with the General Manager.
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3.2. Annually, the General Manager and Employee shall define such goals and performance
objectives which they determine necessary for the proper operation of the Waterloo
Telecommunications Utility and in the attainment of the Board's policy objectives and shall
further establish a relative priority among those goals and objectives, said goals and objectives to
be reduced to writing. They shall generally be attainable within the time limitations as specified
and the annual operating and capital budgets and appropriations provided.
3.3. In effecting the provisions of this section, the General Manager and Employee mutually
agree to abide by the provisions of the applicable law.
4. Resignation
4.1. In the event Employee voluntarily resigns his position with Employer during his
employment, Employee shall give Employer thirty (30) days' written notice in advance unless
the parties mutually agree otherwise.
4.2. In the event Employee voluntarily resigns his position with Employer during employment
and provides written notice, Employee shall receive payment for unused vacation, sick and
personal time and other benefits usually paid other Employees at separation pursuant to
Employer's policies and procedures, unless otherwise specified in this Agreement.
4.3. If Employee does not provide proper written notice and voluntarily resigns from this
position with Employer during employment, Employee shall not be entitled to receive any
severance benefits, except he shall be eligible to receive payment of unused vacation, sick and
personal time consistent with what is usually paid to other employees who voluntarily resign
without proper written notice.
5. Termination for Cause
5.1. Employer may immediately terminate this Agreement at any time for cause. If Employee is
terminated for cause, he shall receive no severance pay, except he shall be eligible to receive
payment for unused vacation, sick and personal time and other benefits usually paid other
Employees who are terminated for cause pursuant to the Employer's policies and procedures.
5.2. For purposes of this Agreement, the term "for cause" shall mean, in the General Manager's
judgment, (a) serious misconduct, including but not limited to conduct, whether personal or
professional, that may bring public embarrassment or disgrace to the Employer, (b) conviction of
a serious violation of law or regulations, (c) documented unsatisfactory performance consistent
with regulations set forth in the employee handbook, (d) failure to meet goals and performance
objectives set by the Board, or (e) material breach of any of the terms of this Agreement,
particularly including but not limited to any of the restrictive covenants set forth in Section 13.
6. Termination Without Cause; Severance
6.1. In the event Employer wishes to terminate employment without cause, it may do so by
giving the Employee 30 days' notice in writing. In such event, the Employee, if requested by the
Employer, shall continue to render his services and shall be paid his regular compensation to the
date of termination per the written notice.
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6.2. Upon termination without cause the Employee shall be entitled to 90 calendar days of
severance pay from the termination date and payment of unused vacation, sick and casual time
and other benefits usually paid other Employees at termination pursuant to Employer's policies
and procedures.
6.3. All health insurance benefits the Employee is participating in at the time of separation shall
also continue for 90 calendar days after the date of employment termination.
6.4. With respect to any severance payments made to the Employee, the Employer agrees to pay
the Employee every two weeks equal to 90 calendar days' aggregate salary minus any and all
applicable taxes, plus continue paid health insurance payments for the same duration.
7. Health and Dental, Disability, Pension and Life Insurance Benefits
Employer will provide for leaves of absence and other benefits, including health and dental
insurance, life insurance, pension plan, and disability coverage that are consistent with the
Employer's policies and procedures.
8. Work Hours
8.1. It is recognized that Employee must devote a significant time outside the normal office
hours to the business of the Employer, and to that end Employee will be allowed appropriate
flexibility in his normal office hours, as approved by the General Manager.
9. Paid Time Off - Sick, Vacation, Personal, and Holidays
9.1. Sick Time: Employee will be credited 16 hours of sick time upon employment through
December 31, 2024. A bank of 96 hours of sick time will be accrued annually on January 1 of
each calendar year, commencing on January 1, 2025.
9.2. Personal Time: On January 1, 2025, and January 1 of each calendar year thereafter
Employee will receive 32 hours of personal time.
9.3. Vacation Time: Employee will be credited 24 hours of vacation time upon employment
through December 31, 2024. A bank of 160 hours of vacation time will be accrued annually on
January 1 of each calendar year, commencing on January 1, 2025.
9.4. Holidays: Employee is considered to be on-call twenty-four (24) hours a day; however,
unless his services are needed, the Employee shall not be required to work on those days which
have been designated as holidays by the Waterloo Telecommunications Utility,
10. Retirement
10.1. The IPERS pension plan will be available for the Employee to participate. The Employer
will contribute the state mandated employer match into the plan.
11. General Business Expenses
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11. 1. Professional Dues and Subscriptions: Employer agrees to budget for and to pay for
reasonable professional dues and subscriptions of the Employee necessary for continuation and
full participation in national, regional, state, and local associations, and organizations necessary
and desirable for the Employee's continued professional participation, growth, and advancement,
and for the good of the Employer.
11.2. The Employer acknowledges the value of having Employee participate and be directly
involved in local civic clubs or organizations. Accordingly, Employer shall pay for the
reasonable membership fees and/or dues to enable the Employee to become an active member in
said clubs or organizations.
11.3. Travel Expense: Employer agrees to pay for eligible and properly approved travel expenses
of Employee according to policies and procedures adopted by the Board. Receipts for all
expenses, meeting agendas, Employee expense reports and any other documents required by
policy shall be attached to paperwork submitted for payment, in accordance with bill payment
policies and procedures adopted by the Board. Such documents shall be submitted as soon as
possible after expenses are incurred.
11.4. The Utility agrees to reimburse the Employee for approved expenses as soon as possible
after proper documentation is provided. Reimbursement will be made in accordance with the
Utility's bill payment schedule.
11.5. Employer shall furnish the Employee all equipment, material, manpower and transportation
necessary to the efficient performance of the official duties of Employee's position as
determined by the Board.
12. Miscellaneous
12.1. Employee shall perform those duties as outlined in the job description approved by the
Board, which establishes the Products and Services Manager position.
12.2. Employee shall devote his full time and talents to the best of his ability and to the best
interest of the Waterloo Telecommunications Utility, in the discharge of his duties.
12.3. The employment provided for by this Agreement shall be the Employee's primary
employment. Any outside activity or employment duties may only be performed by Employee
during Employer non -working hours and must not interfere with Employee's ability to properly
perform his job duties for Employer or pose a conflict of interest with Employer. When such
outside employment consists of professional consultation or other related services, prior approval
must be received from the General Manager.
12.4. Employer agrees that it shall defend, hold harmless, and indemnify the Employee against
any tort, professional liability from all demands, claims, suits, actions, errors, whether groundless
or otherwise, arising out of an alleged act or omission occurring in the performance of
Employee's duties in legal proceedings brought against him in his individual capacity or in his
official capacity, provided the incident arose while he was acting within the scope of his
employment and not attributable to the Employee's gross negligence or willful misconduct.
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12.5. If in the good faith opinion of the Employer and Employee, conflict exists as regards to the
defense of any such claim between the legal position of the Employer and the Employee, the
Employee may engage counsel, in which event the Employer shall indemnify the Employee for
the reasonable cost of legal counsel.
12.6. The Employer agrees to pay all reasonable litigation expenses of Employee throughout the
pendency of any litigation to which the Employee is a party, witness or advisor to the Employer.
Such expense payments shall continue beyond Employee's service to the Employer as long as
litigation is pending.
12.7. Employer agrees to pay Employee reasonable consulting fees and travel expenses when
Employee serves as a witness, advisor or consultant to Employer regarding pending litigation, if
the Employee is no longer working for the Employer at that time.
12.8. Employer shall bear the full cost of any fidelity or other bonds required of the Employee
under any law.
12.9. Employee acknowledges that the Employer is in an organizational phase and certain
policies and procedures relating to the organization are being developed. Employee agrees to
work with the General Manager to develop policies and procedures for the Employer and abide
by such policies and procedures upon adoption by the Board.
13. Restrictive Covenants
13.1. Covenant Against Disclosure of Confidential Information: During the term of Employee's
employment with the Employer, and at any time after the voluntary or involuntary termination of
Employee's employment with the Employer for any reason whatsoever, Employee shall not use
for any purpose other than the Employer's purposes, or disclose to any person or entity except as
necessary in the ordinary conduct of Employer's business and subject to the recipient's execution
of a non -disclosure agreement, any confidential information acquired during the course of his
employment with the Employer. Employee shall not, directly or indirectly, copy, take, or remove
from the Employer's premises, any of the Employer's books, records, customer lists, or any other
documents or materials. The term "confidential information" as used in this Agreement includes,
but is not limited to, records, lists, and knowledge of the Employer's customers, methods of
operation, plans, processes, trade secrets, and personnel records, as the same may exist from time
to time, subject to such disclosures are may be required under the Iowa Open Records Law.
13.2. Non -solicitation of Customers: During the term of Employee's employment with the
Employer and for a period of two (2) years from the voluntary or involuntary termination of
Employee's employment with the Employer for any reason whatsoever, Employee shall not
solicit, induce, or attempt to induce any past or current customer of the Employer (a) to cease
doing business in whole or in part with or through the Employer; or (b) to do business with any
other person, firm, partnership, corporation, or other entity which perforins services materially
similar to or competitive with those provided by the Employer.
13.3. Non -solicitation of Employees: During the term of Employee's employment with the
Employer and for a period of two (2) years from the voluntary or involuntary termination of
Employee's employment with the Employer for any reason whatsoever, Employee shall not
solicit for employment or employ, or solicit for engagement or engage as an independent
contractor, any employee of the Employer, nor induce, influence, recruit, encourage or otherwise
attempt to cause any employee of the Employer to terminate his or her employment with the
Employer.
13.4. Remedies: In addition to all the remedies otherwise available to the Employer, including,
but not limited to, recovery from Employee of damages and reasonable attorneys' fees incurred
in the enforcement of this Agreement, the Employer shall have the right to injunctive relief to
restrain and enjoin any actual or threatened breach of the terms of this Agreement. All the
Employer's remedies for breach of this Agreement shall be cumulative and the pursuit of one
remedy shall not be deemed to exclude any other remedies.
13.5. Reasonableness of Restrictions: Employee has carefully read and considered the
provisions of this Section 13 and, having done so, agrees that the restrictions set forth herein
(including, but not limited to, the time period of restriction and the geographical areas of
restriction) are fair and reasonable and are reasonably required for the protection of the
legitimate business interests of the Employer.
14. General Provisions
14.1. Integration: This Agreement sets forth and establishes the entire understanding between the
Employer and the Employee relating to the employment of the Employee by the Employer. Any
prior discussions or representations by or between the parties are merged into and rendered null
and void by this Agreement. The parties by mutual written agreement may amend any provision
of this Agreement.
14.2. Binding Effect: This Agreement shall be binding on the Employer and the Employee as
well as their respective heirs, assigns, executors, personal representatives and successors in
interest.
14.3. Effective Date: This Agreement shall become effective on Employee's first date of
employment.
14.4. Severability: The invalidity or partial invalidity of any portion of the Agreement will not
affect the validity of any other provision. In the event that any provision of this Agreement is
held to be invalid, the remaining provisions shall be deemed to be in full force and effect as if
they have been executed by both parties subsequent to the expungement or judicial modifications
of the invalid provision.
14.5. Other Terms and Conditions of Employment: Employer, in consultation with the
Employee, may fix any such other terms and conditions of employment, as it may determine
from time to time, relating to the performance of the Employee, provided such terms and
conditions are not inconsistent with or in conflict with the provisions of this Agreement, policies,
or any other law.
14.6. Governing Law: This Agreement shall be governed by the laws of the State of Iowa.
15. Notices
15. 1. Notices pursuant to this Agreement shall be given by deposit in the custody of the United
States Postal Service, postage prepaid, addressed as follows:
Employer: Board Secretary
City Hall
715 Mulberry Street
Waterloo, IA 50703
Employee: Ross Horbach
215 Derbyshire Road
Waterloo, IA 50701
(or to his most recent residence address as shown
in the personnel or payroll records of the Employer)
Alternatively, notices required pursuant to this Agreement may be personally served in the same
manner as is applicable to civil judicial practice. Notice shall be deemed given as of the date of
personal service or as the date of deposit of such written notice, postage prepaid, in a US Postal
Service receptacle.
16. Disputes
16.1. Informal Negotiation: The parties shall initially attempt to resolve all claims, disputes, or
controversies arising under, out of, or in connection with this Agreement by conducting good
faith negotiations. The dispute shall be considered to have arisen when one party sends to the
other party a written notice of dispute. If the parties are unable to resolve the matter following
good faith informal negotiations within thirty (30) days, the parties agree to submit the dispute to
mediation.
16.2. Mediation: Within fourteen (14) days following the expiration of the time period for
informal negotiations in 16. 1, the parties shall attempt to agree upon a neutral and qualified
mediator to assist the parties in resolving the dispute. If the parties fail to agree upon a mediator,
the parties shall request the American Arbitration Association ("AAA") to appoint a qualified
mediator for a mediation to be held in Black Hawk County, Iowa. The period for mediation shall
commence upon the appointment of the mediator and shall not exceed sixty (60) calendar days,
unless such time period is extended by mutual agreement of the parties. The mediator's fees and
AAA fees shall be shared equally by the parties, but otherwise the parties will bear their own
costs for mediation. If the parties are unable to resolve the matter through informal negotiations
or mediation, the parties agree to submit such dispute to arbitration, which the parties agree shall
be the exclusive means for resolving disputes which the parties cannot otherwise resolve as
described above.
16.3. Arbitration: Subject to prior compliance with the requirements of Sections 16.1 and 16.2,
any dispute may be resolved by arbitration conducted pursuant to Chapter 679A of the Code of
Iowa. The parties shall attempt to agree in writing upon a neutral and qualified arbitrator within
fourteen (14) days following the delivery of written notice by either party to the other party
setting out the dispute in general terms and requesting that the dispute be resolved by arbitration.
If the parties cannot agree upon a single arbitrator, each party shall appoint its own arbitrator,
and the arbitrators so appointed shall themselves appoint at least one additional arbitrator to
ensure that there are an odd number of arbitrators. The decision of the arbitrator, or, in the case
of more than one arbitrator, the simple majority decision of such panel of arbitrators, shall
determine all issues in dispute between the parties. Said decision shall be final and binding and
shall not be subject to appeal on a question of fact, law, or mixed fact and law, except as
permitted under Chapter 679A. Arbitration shall be conducted in Waterloo, Iowa. Fees of the
arbitrator(s) shall be shared equally by the parties, but otherwise each party will bear its own
arbitration costs, including but not limited to attorney's fees and expenses. Except where clearly
prevented by the area in dispute, both parties agree to continue performing their respective
obligations under this Agreement while the dispute is being resolved.
16.4. Discovery in Arbitration: Consistent with the expedited nature of arbitration, each party
will, upon written request of the other party, promptly provide the other with copies of
documents legally relevant to the issues raised by any claim or counterclaim. Any dispute
regarding discovery or the relevance or scope thereof shall be determined by the arbitrator(s),
which determination shall be conclusive. All discovery shall be completed within sixty (60)
days following appointment of the arbitrator(s).
16.5. Remedies: The arbitrator(s) may grant any relief available at law or in equity, including
but not limited to equitable remedies of specific performance and injunction. Because the
Employer will be irreparably damaged if the restrictive covenants set forth in Section 13 are not
specifically enforced, it shall be entitled to an injunction restraining any violation of the said
provisions by the Employee, or to any other appropriate decree of specific performance, in
addition to any other remedies allowed by applicable law. The Employee hereby waives any
requirement that the Employer post bond or show the likelihood of damages as a condition to
issuance of a writ of injunction.
16.6. Attorney Fees: In the event of any mediation or arbitration to interpret, settle or enforce
any of the provisions of this Agreement, each party shall bear its own attorney's fees and costs,
except that the Employee shall bear the reasonable attorney's fees and expenses incurred by the
Employer in any dispute where the Employee is found to have violated any of the restrictive
covenants set forth in Section 13.
IN WITNESS WHEREOF, the Waterloo Telecommunications Utility has caused this Agreement
to be signed and executed by the Board Chair as duly authorized by resolution of the Board, and
duly attested by the Board Secretary.
EMPLOYEF
Ross Horbach
EMPLOYER
DIGITALLY
SIGNED
By: — _•c
Andy Van Fleet, Board Chair
Attest: Xe((ey Fefchle GS'icNED
Kelley Felchle, Board Secretary
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