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HomeMy WebLinkAbout2023-029-11.1.2023.docRESOLUTION NO. 2023-029 RESOLUTION APPROVING AN INCENTIVE PAY POLICY FOR WATERLOO FIBER EMPLOYEES. BE IT RESOLVED BY THE WATERLOO TELECOMMUNICATIONS UTILITY BOARD OF TRUSTEES OF WATERLOO, IOWA, that an Incentive Pay Policy for Waterloo Fiber Employees is hereby adopted. PASSED AND ADOPTED this 1st day of November 2023. ______________________________ Andrew Van Fleet, Board Chair ATTEST: ______________________________ Kelley Felchle, Board Secretary SEAL Docusign Envelope ID: 02DB97D1-DB22-41CF-9A53-F93D06B53B92 1 WATERLOO FIBER INCENTIVE COMPENSATION PLAN The Municipal Telecommunications Utility of the City of Waterloo, Iowa, d/b/a Waterloo Fiber (the “Utility”), has established this Incentive Compensation Plan (the “Plan”) for the benefit of those persons identified as “Participants” hereunder. 1. Purpose. The Plan is designed to incentivize and reward employees for their contributions in driving the sale of subscription services and related goods to customers of the Utility and in retaining customers through delivery of responsive and high-quality services. The Plan is intended to motivate Participants to continue investing in the current and future success of the Utility. 2. Participants. Participation in the Plan shall include full-time and part-time employees of the Utility (“Participants”). A Participant must be employed by the Utility for more than six (6) consecutive months of the Plan year to be eligible to receive an Incentive payment with respect to that year. 3. Incentive Payment. Each calendar year during the term of a Participant’s employment, the Participant shall be entitled to receive an incentive payment (the “Incentive”) determined as such Participant’s pro rata share of an incentive pool (the “Pool”). One Pool will be maintained for the General Manager and the Sales Manager (the “Key Employee Pool”), and one Pool will be maintained for other Participants (the “General Employee Pool”). A Pool for a given Plan year will be funded as a percentage of the revenues actually collected by the Utility in such year with respect to any and all customer subscriptions, fees and other charges paid by customers, including fees and charges for equipment sold to or rented by customers and repairs charged to customers, but excluding all other sources of income, revenues or funding derived from sources other than customers. Each Plan year, the Utility board will determine the percentage of eligible revenues for Plan funding purposes and the goals, such as new subscriber uptake or existing subscriber retention, that must be met to achieve different levels of Incentive payment for that Plan year. For clarity, a Pool shall be established for each calendar year, and an Incentive shall be paid to each Participant with respect to such year. A. Key Employee Pool. Participants will share equally in any Incentives payable from the Key Employee Pool. For purpose of illustration, if $33,795 is the funding available in the Pool for a 40% goal that achieves 90% results (but does not reach a higher level of results, such as 100%, that would trigger a greater level of funding), then the Incentive payable to a given Participant for that plan year is determined by dividing $33,795 by the number of Participants in the Pool. B. General Employee Pool. A given Participant’s pro rata share for a given Plan year shall be determined by dividing the total salary paid to such Participant during that year by the total salary paid to all Participants in the General Employee Pool during the same year, and then multiplying the resulting number, rounded to the nearest hundredth, by the total funds available in the Pool for that year that corresponds to the highest level of results obtained relative to the goal for that Plan year. For purposes of 2 this paragraph, “total salary” does not include Incentive payments or other bonuses received by a Participant. For purpose of illustration, if $135,179 is the funding available in the Pool for a 40% goal that achieves 90% results (but does not reach a higher level of results, such as 100%, that would trigger a greater level of funding), then the Incentive payable to a given Participant for that plan year equals $135,179 multiplied by the proportion (rounded to the nearest hundredth) that his or her total salary bears to the total salary of all Participants in the Pool. 4. Payment. Except as set forth in Section 5, the Utility shall pay the Incentive with respect to a given Plan year to each Participant no later than March 31 of the following year. Incentive payments shall be subject to all applicable payroll taxes and withholdings. It is the Participant’s sole responsibility to keep his or her contact information current with the Utility, including information necessary for direct deposit if applicable, including for any period after termination of employment in which an Incentive may be payable. Pursuant to Iowa Code Chapter 97B, Incentive payments are not “wages” for purposes of the Iowa Public Employees’ Retirement System (IPERS). 5. Incentive Forfeiture and Repayment: Notwithstanding anything to the contrary in this Plan, a Participant shall forfeit the Incentive in its entirety if, at any time before the Incentive is paid, (a) the employment of Participant is terminated for cause, as defined in Section 6 below, or (b) such employment is terminated for reasons other than cause but Participant has violated any of the restrictive covenants set forth in Section 7. If, during any post-employment period in which the restrictive covenants set forth in Section 7 are in force, the Participant is found to have engaged in conduct that violates any of such restrictive covenants, then in the sole discretion of the Utility’s governing board (the “Board”) and upon written demand the Participant shall be required to repay to the Utility the most recent Incentive payment received by the Participant. In addition to other methods, repayment may occur by offset against any severance payments owed. 6. Termination for Cause. For purposes of this Plan, the Term “for cause” shall mean, in the Board’s judgment, (a) serious misconduct, including but not limited to conduct, whether personal or professional, that may bring public embarrassment or disgrace to the Utility, (b) conviction of a serious violation of law or regulations, (c) documented unsatisfactory performance consistent with regulations set forth in the employee handbook or other written policy of the Utility, (d) failure to meet goals and performance objectives set by the Board, or (e) material breach of any of the terms of this Plan, particularly including but not limited to any of the restrictive covenants set forth in Section 7. 7. Restrictive Covenants. The restrictions set forth in this Section 7 are intended to govern with respect to a Participant’s eligibility for payments under this Plan. Pursuant to separate agreement or policy, a Participant may also be subject to other restrictions. 7.1. Covenant Against Disclosure of Confidential Information. During the term of Participant’s employment with the Utility, and at any time after the voluntary or involuntary termination of Participant’s employment with the Utility for any reason whatsoever, Participant shall not use for any purpose other than the Utility’s purposes, or disclose to any person or entity except as necessary in the ordinary conduct of Utility’s business and subject to the recipient’s execution of a non-disclosure agreement, any 3 confidential information acquired during the course of his or her employment with the Utility. Participant shall not, directly or indirectly, copy, take, or remove from the Utility’s premises, any of the Utility’s books, records, customer lists, or any other documents or materials. The term “confidential information” as used in this Plan includes, but is not limited to, records, lists, and knowledge of the Utility’s customers, methods of operation, plans, processes, trade secrets, and personnel records or information, as the same may exist from time to time, subject to such disclosures are may be required under the Iowa Open Records Law. 7.2. Non-solicitation of Customers. During the term of Participant’s employment with the Utility and for a period of one (1) year from the voluntary or involuntary termination of Participant’s employment with the Utility for any reason whatsoever, Participant shall not solicit, induce, or attempt to induce any past or current customer of the Utility (a) to cease doing business in whole or in part with or through the Utility; or (b) to do business with any other person, firm, partnership, corporation, or other entity which performs services materially similar to or competitive with those provided by the Utility. 7.3. Non-solicitation of Employees. During the term of Participant’s employment with the Utility and for a period of one (1) year from the voluntary or involuntary termination of Participant’s employment with the Utility for any reason whatsoever, Participant shall not solicit for employment or employ, or solicit for engagement or engage as an independent contractor, any employee of the Utility, nor induce, influence, recruit, encourage or otherwise attempt to cause any Participant of the Utility to terminate his or her employment with the Utility. 8. Relation to Other Agreements. The terms and conditions of this Plan are intended to supplement the terms and conditions of any separate employment or other agreement to which a Participant and the Utility are parties, and the terms and conditions hereof shall not supersede, replace or modify the terms and conditions of any such agreement. 9. No Guarantee of Employment. The adoption and maintenance of the Plan shall not be deemed to be a contract of employment or a contract for the performance of services between the Utility and a Participant. Nothing contained in the Plan shall give a Participant the right to be retained in the employ of the Utility, or to interfere with the right of the Utility to discharge the Participant at any time. 10. Severability. The invalidity or partial invalidity of any portion of this Plan will not affect the validity of any other provision. In the event that any provision of this Plan is held to be invalid, the remaining provisions shall be deemed to be in full force and effect. 11. Captions. Section headings and captions are provided for purposes of reference and convenience only and shall not be relied upon in any way to construe, define, modify, limit, or extend the scope of any provision of the Plan. 12. Governing Law. The Plan and all rights under the Plan shall be governed by and construed according to the internal laws of the State of Iowa. 4 13. Dispute Resolution. 13.1. Informal Negotiation. The parties shall initially attempt to resolve all claims, disputes, or controversies arising under, out of, or in connection with this Plan 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. 13.2. Mediation. Within fourteen (14) days following the expiration of the time period for informal negotiations in 13.1, 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. 13.3. Arbitration. Subject to prior compliance with the requirements of Sections 13.1 and 13.2, 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. 13.4. 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 5 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). 13.5. 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 Utility will be irreparably damaged if the restrictive covenants set forth in Section 7 are not specifically enforced, it shall be entitled to an injunction restraining any violation of the said provisions by the Participant, or to any other appropriate decree of specific performance, in addition to any other remedies allowed by applicable law. The Participant hereby waives any requirement that the Utility post bond or show the likelihood of damages as a condition to issuance of a writ of injunction. 13.6. Attorney Fees. In the event of any mediation or arbitration to interpret, settle or enforce any of the provisions of this Plan, each party shall bear its own attorney’s fees and costs, except that the Participant shall bear the reasonable attorney’s fees and expenses incurred by the Utility in any dispute where the Participant is found to have violated any of the restrictive covenants set forth in Section 7. 14. Modification. The Utility reserves the right to modify the terms and conditions of this Plan at any time. Adopted ________________