Loading...
HomeMy WebLinkAboutExhibit 1(05/10/12)SETTLEMENT AGREEMENT AND RELEASE This SETTLEMENT AGREEMENT AND RELEASE ("Agreement") is made and entered into this day of May, 2012, by and among Choice Environmental Services of Miami, Inc., and the City of Miami, a municipal corporation (the "City"). Choice and the City are collectively the "Parties." WITNESSETH: WHEREAS, Choice Environmental Services of Miami, Inc. has been an approved franchisee of the City providing solid waste collection and disposal services since 2004 pursuant to an assignment of franchise approved by Resolution No. 04-0484 (the "1998 Franchise Agreement"), a franchise agreement dated October 1, 2004 approved in 2004 by to Resolution Nos. 04-0496 and 04-0672 (the "2004 Franchise Agreement"), and a franchise agreement dated October 1, 2010 approved in 2010 by Resolution No. 10-0419 (the "2010 Franchise Agreement") (the 1998 Franchise Agreement, the 2004 Franchise Agreement, and the 2010 Franchise Agreement are collectively the "Franchise Agreements"); and WHEREAS, Choice Environmental Services, Inc. recently became a wholly owned subsidiary Swisher in a transaction where Choice Environmental Services, Inc. retained its name and local management structure, but saw a transfer of a majority of its ownership interest and a change to its officers and directors; and WHEREAS, pursuant to Section 13.1 of the 2010 Franchise Agreement a significant change in ownership, its officers or directors is considered an "assignment" of . the franchise and must be approved by the City; and WHEREAS, in compliance with Section 13.1 of the 2010 Franchise Agreement, Choice sought approval of the assignment of the 2010 Franchise Agreement (the "Assignment"); and WHEREAS, Section 13.1 of the 2010 Franchise Agreement requires that a franchisee resolve any outstanding issues with the City and otherwise be fully in compliance with the 2010 Franchise Agreement prior to the City Commission consideration of the Assignment (the "Assignment Approval"); and WHEREAS, the City and Choice have reviewed the billing records under the Franchise Agreements from the date of their inception through the date of the Assignment Approval (the "Franchise Period"), have agreed on the extent of outstanding balances, and seek to bring Choice into full compliance with the Franchise Agreements in anticipation of the consideration of the Assignment; WHEREAS, Choice represents that they have provided the City with records of all accounts that relate to the Franchise Agreements during the relevant time periods; NOW, THEREFORE, in consideration of the mutual covenants contained herein, the payments described herein, and for other consideration, the receipt and sufficiency of all such consideration being expressly acknowledged by each of the Parties, the Parties agree to resolve this matter of outstanding balances, and any and all pending and potential claims and defenses of the City against Choice, and all future assigns, and all persons, firms and corporate entities affiliated with each of them, and declare Choice in full compliance with the Franchise Agreements for the entire Franchise Period, as follows: 1. Recitals. The above recitals are hereby made a part of this Agreement as if fully set forth herein. 2. Settlement Sum; Payment. Choice shall pay to the City $$698,044.97 ("Settlement Amount") in full and final settlement of all claims and potential claims of the City related directly or indirectly in any way to the Franchise Agreements for the entire Franchise Period. Payment shall be made immediately in available United States funds in the form of a certified check in full upon final City Commission approval of this Agreement and the Assignment. The Parties conclusively settle any and all claims and defenses and potential claims and defenses of each of said Parties against each other arising out of the Franchise Agreements through the date of the approval of the assignment. It is recognized that new revenues subject to the Franchise Agreement are being generated on a daily basis and this agreement in no way affects the continuing obligations of Choice under the Franchise Agreement that are not past due. 3. Termination of Notice to Surety. Upon receipt of the payment hereunder, the City shall immediately cancel, revoke and/or terminate any pending or future claims against any surety or bonding company in connection with the Franchise Agreements during the Franchise Period, including but not limited to the claim against International Fidelity Insurance Company dated June 3, 2011. Choice expressly waives any claims against the City relating to any claim made by the City against that bond. The City agrees to cooperate with Choice in the future in relation to any and all claims against Choice or any affiliate or assigns brought by any surety or bonding company in connection with the Franchise Agreements. 4. Full Compliance and Release. Upon representations by Choice, approval, execution and payment of this Agreement, the City shall deem Choice in full compliance with the Franchise Agreements. Upon payment of the Settlement Amount, the City knowingly and voluntarily releases, waives, and forever discharges any and all claims, rights, demands, causes of actions, or any kind whatsoever, known or unknown, foreseen or unforeseen, foreseeable or unforeseeable, and any consequences thereof, which the City may have against Choice and all future assigns, persons, firms and corporate entities affiliated with each of them, including all sureties and/or bonding companies, in connection with the Franchise Agreements through the date of the approval of the assignment of the Franchise Agreement. The City also acknowledges and agrees that this release and waiver bars any claim or demand for damages, costs, fees, or other expenses, including attorneys' fees, incurred in connection with the Franchise Agreements through the date of the approval of the assignment of the Franchise Agreement. The Parties fully, finally and forever resolve and release any and all disputes it may have or believe itself to have against each other with respect to the Franchise Agreements for the period up through and including the approval of the transfer, whether those disputes are presently known or unknown, suspected or unsuspected. 5. No Evidence of Wrongdoing. This Settlement Agreement shall not constitute and shall not be construed as evidence or an admission of liability or wrongdoing by Choice, their officers, directors, employees, agents, attorneys, representatives, parents, affiliates, subsidiaries, successors, or assigns, with respect to the Franchise Agreements, and is being entered into by the parties to facilitate the Assignment. 6. Acknowledgment. The Parties acknowledge that they have each been represented by counsel, have read and understand the foregoing, and that the terms of this Agreement are voluntarily accepted by all parties for the purpose of making a full and final compromise, adjustment and settlement of any and all claims, disputed or otherwise. 7. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida. 8. No Third -Party Benefit. No statements or agreements set forth in this Agreement shall in any way inure to the benefit of any third party, unless otherwise provided for in this Agreement. This Agreement shall not create or give to any third person or entity any right, claim, benefit, defense, or cause of action against any Party hereto nor shall it be construed as any admission by any Party that any compensation is owed to any third party not specifically identified in this Agreement. 9. Copies of Signatures. The parties agree photographic and electronic copies of a signature shall be accepted as an authentic, original signature. 10. Authorized Corporate Action. The undersigned, by their signatures, individually or corporate as the case may be, represent that this Agreement and execution hereof has been duly authorized by all necessary corporate actions and that they are duly authorized and empowered to execute this release and to bind the Parties to the matter set forth herein. 12. Attorney's Fees. In any action or proceeding to enforce this Agreement, the prevailing party shall be entitled to recover from the non -prevailing party all reasonable costs and attorney's fees (at both the trial and appellate level), in addition to any other relief awarded. 13. Integration/Merger. This Agreement embodies the entire agreement between the parties hereto with respect to the subject matter hereof, and supersedes all prior representations, statements, and agreements, both written and oral, including the parties' alleged settlement agreement dated July 13, 2009, which the City continues to dispute. IN WITNESS WHEREOF, the Parties have knowingly, freely and voluntarily hereunder set their hands to this seal this day of May, 2012. CHOICE ENVIRONMENTAL SERVICES OF MIAMI, INC., a Florida corporation By: Its: CITY OF MIAMI, a Municipal Corporation: By: Johnny Martinez City Manager ATTEST: Priscilla A. Thompson City Clerk APPROVED AS TO FORM AND CORRECTNESS: Julie O. Bru, Esq. City Attorney