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HomeMy WebLinkAboutR-2018-004 Authorizes Execution of Settlement Agreement with Progressive Waste Solutions of FL, Inc., D/B/A Waste Connections of FL, Pertaining to Payment (Collection/Disposal of Solid Waste Material) RESOLUTION NO. 2018-004 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DANIA BEACH, FLORIDA, AUTHORIZING THE PROPER CITY OFFICIALS TO EXECUTE A SETTLEMENT AGREEMENT BETWEEN THE CITY AND PROGRESSIVE WASTE SOLUTIONS OF FL, INC., A DELAWARE CORPORATION D/B/A WASTE CONNECTIONS OF FLORIDA, PERTAINING TO A PAYMENT TO THE CITY WHICH IS RELATED TO COLLECTION AND DISPOSAL OF SOLID WASTE AND RECYCLING MATERIALS IN THE CITY BY THE COMPANY; PROVIDING FOR CONFLICTS; FURTHER, PROVIDING FOR AN EFFECTIVE DATE. BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF DANIA BEACH,FLORIDA: Section 1. That the City Commission authorizes the proper City officials to execute a Settlement Agreement between the City and Progressive Waste Solutions of FL, Inc., a Delaware corporation d/b/a Waste Connections of Florida pertaining to a payment to the City related to collection and disposal of solid waste and recycling materials in the amount of Twenty Eight Thousand Nine Hundred Seventy Six Dollars and Thirty Nine Cents ($28,976.39); a copy of the Settlement Agreement is attached as Exhibit"A", and it is made a part of and is incorporated into this Resolution by this reference. Section 2. That the City Manager and City Attorney are authorized to make revisions to such Settlement Agreement as are deemed necessary and proper and in the best interests of the City, and agreed to by the other party. Section 3. That all resolutions or parts of resolutions in conflict with this Resolution are repealed to the extent of such conflict. Section 4. That this Resolution shall be in full force and take effect immediately upon its passage and adoption. PASSED and ADOPTED on January 9, 2018. ATTEST: �pav's'Fri � 1 LOUISE STILSON, CMC AMARA JANn CITY CLERK , MAYOR APPROVED AS TO FORM AND CORRECTNESS: THOM S . N R CITY ATTOkNEj 2 RESOLUTION 42018-004 SETTLEMENT AND RELEASE AGREEMENT FOR SOLID WASTE AND DISPOSAL SERVICES This Settlement and Release Agreement ("Agreement") is entered into as of , 2018, between Progressive Waste Solutions of FL, Inc., a Delaware corporation d/b/a Waste Connections of Florida ("Waste Connections") and the City of Dania Beach, Florida, a municipal corporation ("City"). Waste Connections and City are referred to throughout this Agreement as the "Parties" or as each "Party". WHEREAS, Waste Connections provides services to commercial customers in the City pursuant to a City Solid Waste Hauling Permit (the "Dania Beach Permit") for the provisions of services under the Ordinances of the City of Dania Beach for collection and disposal of solid waste; and WHEREAS, the Parties have agreed that Waste Connections owes payment to the City for solid waste and recyclable materials collection, or disposal services or both, rendered prior to April 1, 2017; and WHEREAS,the Parties have agreed to enter into this Agreement to resolve all possible claims and liabilities of Waste Connections (the "Claims") relating to the services provided by Waste Connections; IT IS THEREFORE AGREED, in consideration of the mutual promises and covenants of both Parties in this Agreement, the recitals above, and other valuable consideration the receipt and sufficiency of which are acknowledged and agreed upon, as follows: TERMS 1. Incorporation of Recitals. The Parties agree and acknowledge that the foregoing Recitals to this agreement are true and correct and are incorporated into and made a part of this Agreement as if fully set forth in this Agreement. 2. Terms of Settlement. The City and Waste Connections acknowledge and agree as follows: A. No later than thirty (30) days after the approval by the City Commission and execution of this Agreement by the City, Waste Connections will pay the City 1 Twenty Eight Thousand Nine Hundred Seventy Six Dollars and Thirty Nine Cents ($28,976.39) as full and final payment due to the City in connection with delivery of waste to the City's designated waste disposal site. B. Waste Connections shall make and City shall accept the Settlement Payment, to resolve and completely satisfy the Claims, and any and all remaining actions, bills, causes of action, claims, controversies, damages, debts, demands, disputes, invoices, lawsuits, liabilities, liens, sums of money, or other losses for any and all other amounts due or owing, or alleged to be due or owing, or accruing for any services rendered by Waste Connections or arising from Waste Connections and its partners, shareholders, members, managers, parents, subsidiaries, affiliates, joint ventures, related companies and any of its agents, employees, attorneys, directors, officers, employees, representatives, and subcontractors providing or arising from any solid waste collection and disposal services of Waste Connections prior to April 1, 2017. C. Notwithstanding the foregoing, except as expressly set forth in this Agreement,this Agreement is not intended to modify any future obligations as set forth in the Dania Beach Code of Ordinances and the Dania Beach Permit for services rendered subsequent to April 1, 2017, all of which shall remain in full force and effect except as specifically released or otherwise modified in this Agreement. D. Each Party shall bear its own costs, attorney fees and other expenses incurred in resolving the Claims and any other matters resolved by this Agreement. Each Party warrants that it will not pursue claims for or entitlement to past or present costs, attorney fees or other expenses related in any way to the Claims and this Agreement (including but not limited to, expert and professional fees, administrative or collection costs, interest, late charges/fees, service interruption costs, fees or other expenses). Notwithstanding the foregoing, the prevailing Party in any action to enforce this Agreement (and the releases 2 included in it) shall be entitled to its reasonable expenses, including reasonable attorney fees, costs and litigation expenses incurred at all levels of trial and appeal. E. Nothing in this Agreement, including the payment as set forth in it, shall be deemed as an admission of liability by any Parry of any claim that was or could have been asserted by any Party. 3. Mutual General Release. The Parties mutually release and forever unconditionally and irrevocably release and discharge each other and covenant not to sue each other, and their respective directors, officers employees, principals, agents, mangers, general and limited, partners, members, council members, staff, representatives, attorneys, successors, heirs, assigns, and the successors and assigns of professional associations, from any and all rights, obligations, liens, claims, damages, demands, relief, liabilities, equities, actions, suits, bonds, bills, covenants, contracts,judgments and execution, and causes of action of whatever kind and character, in law or in equity, in contract or in tort or public policy, both known and unknown, suspected or unsuspected, disclosed and undisclosed, actual or consequential, fixed or contingent, specific or general, declaratory or injunctive, for compensatory or punitive damages, remuneration, attorney fees, costs, expenses, or anything of value whatsoever, claims, cross claims, counter claims, and third-party claims which the Parties have or had against each other from the beginning of the world through April 1, 2017 relating to all Claims. 4. No Release of Obligations. Notwithstanding anything to the contrary in this Agreement, the Mutual General Release set forth in Paragraph 3 shall not include the release of any of the Parties' obligations under this Agreement. 5. Release Effective Only Upon Closing. The Mutual General Release in Paragraph 3 shall become effective only upon the payment and clearance of the Settlement Funds as set forth in Paragraph 2, above. 3 6. Warranty. City acknowledges and agrees that as of the date of this Agreement, Waste Connections is not in breach or default of, and is in good standing with City, under the City Ordinances and Waste Connections' Dania Beach Permit. 7. Cooperation. City agrees to take such further actions and execute and deliver such further documents as may be reasonably necessary to evidence approval of this Agreement. 8. Choice of Law and Venue. This Agreement shall be construed in accordance with Florida law, without regard to conflict of laws principles. The Parties agree that personal jurisdiction over them in Florida shall be proper for purposes of enforcing any provisions of this Agreement and that the exclusive venue for any action arising out of or related to this Agreement shall be exclusively in the state or federal courts for Broward County, Florida. Each Parry to this Agreement waives any objection based on forum non conveniens and waives any objection to venue of any action instituted under this Agreement except for the purposes of enforcing the foregoing exclusive venue provision. 9. Dispute Resolution. All claims, counterclaims, disputes and other matters in question between City and Waste Connections arising out of, relating to or pertaining to this Agreement, or the breach of it, or the services of it, or the standard of performance required in it, shall be addressed by resort to non-binding mediation as authorized under the laws and rules of Florida; provided, however, that in the event of any dispute between the parties, the parties agree to first negotiate with each other for a resolution of the matter or matters in dispute and, upon failure of such negotiations to resolve the dispute, the parties shall resort to such non-binding mediation. If mediation is unsuccessful, any such matter may be determined by litigation in a court of competent jurisdiction. In any litigation,the parties agree to each waive any trial by jury of any and all issues. In the event of any litigation which arises out of, pertains to, or relates to this Agreement, or the breach of it, or the standard of performance required in it the prevailing party shall be entitled to recover reasonable attorney fees from the non-prevailing party. It is acknowledged and agreed upon that each Party to this Agreement had the opportunity to be represented by counsel in the preparation of this Agreement. 4 10. Merger. This Agreement represents the entire agreement between the Parties and supersedes any and all prior agreements or understandings. This document may be executed in counterparts, with all copies, together, comprising one and the same instrument. Further, a photocopy, PDF, or facsimile signature on this document shall be effective as the original for all purposes. 11. No Oral Modification. No supplement, modification, or amendment to this Agreement shall be binding unless in writing and executed by both Parties. No waiver of any of the provisions of this Agreement shall be, or shall constitute, a waiver of any other provision, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed by the Party making the waiver. 12. Severability. In the event any provision of this Agreement is determined by an appropriate judicial authority to be illegal or otherwise invalid or unenforceable, such provision shall be given its nearest legal meaning as such authority reasonably determines, and the remainder of this Agreement shall be construed to be in full force and effect. 13. Headings. The section headings appearing in this document are inserted for convenience only. They do not define, limit or extend the scope or intent of the language of the sections to which they pertain. 14. City Commission Approval. This Agreement requires advance approval by the City Commission. SIGNATURES APPEAR ON FOLLOWING PAGE 5 IN WITNESS OF THE FOREGOING, the Parties have executed this Agreement as of the day and year first written above. CITY OF DANIA BEACH,FLORIDA, a Florida municipal corporation LOUISE STILSON, CMC TAMARA JAMES CITY CLERK MAYOR APPROVED AS TO LEGAL FORM AND CORRECTNESS THOMAS J. ANSBRO ROBERT BALDWIN CITY ATTORNEY CITY MANAGER 6 WITNESSES: PROGRESSIVE WASTE SOLUTIONS OF FL,INC., a Delaware corporation d/b/a Waste Connections of Florida Signature Signature PRINT Name PRINT Name Signature Title Dated: , 20 PRINT Name STATE OF FLORIDA COUNTY OF BROWARD The foregoing instrument was acknowledged before me on , 2018, by , as of PROGRESSIVE WASTE SOLUTIONS OF FL, INC., a Delaware corporation, d/b/a Waste Connections of Florida, for and on behalf of the company, to me personally known or who presented as identification. Notary Public Print Name: My commission expires: 7