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HomeMy WebLinkAboutAttachment B SUBM4ac 1nvrlertf Q THIS DOCUMENT IS A SUBSTITUTION TO ORIGINAL. BACKUP ORIGINAL CAN BE SEEN AT THE END OF THIS DOCUMENT. AGREEMENT AND RELEASE at h curnel/1 This AGREEMENT AND RELEASE ("Agreement") is made and entered into this day of April, 2014, by and among Progressive Waste Solutions of FL, Inc., a Delaware corporation ("Progressive"), and the City of Miami, a municipal corporation (the "City"). Progressive and the City are collectively the "Parties." WITNESSETH: WHEREAS, Progressive and/or its predecessors in interest or affiliates have been approved franchisees of the City providing commercial solid waste collection and disposal services under a franchise agreement dated October 1, 2004 approved in 2004 by 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 2004 Franchise Agreement, and the 2010 Franchise Agreement are collectively the "Franchise Agreements"; and WHEREAS, pursuant to an audit by the City's Auditor General, the City and Progressive have reviewed the billing records under the Franchise Agreements from March 1, 2008 through February 28, 2013 (the "Period"), have agreed on the extent of outstanding balances, and seek full payment in connection with all fees due for audit #14-004 to the City under the Franchise Agreement; and WHEREAS, Progressive represents that they have provided the City with records of all accounts that relate to the Franchise Agreements during the Period and that representations made as part of the audit were truthful to the best of Progressive's knowledge. 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 Progressive, and all future assigns, and all persons, firms and corporate entities affiliated with each of them, arising from alleged issues of compliance with the Franchise Agreements reviewed during the Period and declare Progressive in full compliance with the Franchise Agreements for the entire Franchise Period as defined above, as follows: 1. Recitals. The above recitals are hereby made a part of this Agreement as if fully set forth herein. 2. Payment. Progressive shall pay to the City $376,252 ("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 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. 4-602.9 3' 5U135T I TuT . — HickcV\mt -\- SU9MITTED htO 1 he PUBLIC RECORD FOR {TEMP. I ONL1L THIS DOCUMENT IS A SUBSTITUTION TO ORIGINAL. BACKUP ORIGINAL CAN BE SEEN AT THE END OF THIS DOCUMENT. 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 execution of this Agreement. 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 Progressive under the Franchise Agreement. 3. Full Compliance and Release. Upon representations by Progressive, approval and execution of this Agreement, and payment of the Settlement Amount, the City shall deem Progressive in full compliance with the Franchise Agreements reviewed for the Period as defined above. 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, of any kind whatsoever, known or unknown, foreseen or unforeseen, foreseeable or unforeseeable, and any consequences thereof, which the City may have against Progressive 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 reviewed for the Period as defined above. 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 reviewed through the Period as defined above. Progressive voluntarily and mutually releases the City of any and all claims during the Period. The Parties fully, finally and forever resolve and release any and all disputes they may have or believe themselves to have against each other with respect to the Franchise Agreements for the Period as defined above, whether those disputes are presently known or unknown, suspected or unsuspected. 4. No Evidence of Wrongdoing. This Agreement shall not constitute and shall not be construed as evidence or an admission of liability or wrongdoing by Progressive, 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 continuing operation of the franchise within the City. 5. 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. 6. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida. 7. 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. 8. Copies of Signatures. The parties agree photographic and electronic copies of a signature shall be accepted as an authentic, original signature. t4-(GZL 3- Sv6Sit TUTE -Psi--ccV ,mans 3 THIS DOCUMENT IS A SUBSTITUTION TO ORIGINAL. BACKUP ORIGINAL CAN BE SEEN AT THE END OF THIS DOCUMENT. 9. 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. 10. 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, except for the settlement agreement between Choice Environmental Services of Miami, Inc. and the City dated May 31, 2012, which the City agrees continues in full force and effect. IN WITNESS WHEREOF, the Parties have knowingly, freely and voluntarily hereunder set their hands to this seal this day of April, 2014. BY: BY: BY: PROGRESSIVE WASTE SOLUTIONS OF FL, INC., a Delaware corporation By: Its: CITY OF MIAMI Daniel Alfonso, Date CITY MANAGER Attest: Todd Hannon CITY CLERK Approved as to Form and Correctness: Date Victoria Mendez Date CITY ATTORNEY 14- (ails -Su6siTu i E - et-HacOment �j SUBSTITUTED Attachment B AGREEMENT AND RELEASE This AGREEMENT AND RELEASE ("Agreement") is made and entered into this da of April, 2014, by and among Progressive Waste Solutions of FL, Inc., a Delaware corporati. ("Progressive"), and the City of Miami, a municipal corporation (the "City"). Progressive . d the City are collectively the "Parties." WITNESSETH: WHEREAS, 'rogressive and/or its predecessors in interest or affiliates have been approved franchisees +f the City providing commercial solid waste collection and disposal services under a franc - agreement dated October 1, 2004 approved in 2004 by Resolution Nos. 04-0496 and 04-067 - the "2004 Franchise Agreement"), and a franchise agreement dated October 1, 2010 approve. in 2010 by Resolution No. 10-0419 (the "2010 Franchise Agreement"). The 2004 Fri. ' chise Agreement, and the 2010 Franchise Agreement are collectively the "Franchise Agre= +l ents' ; and WHEREAS, pursuant to an a have reviewed the billing records and February 28, 2013 (the "Period"), have full payment in connection with all fees Agreement; and it by the City's Auditor General, the City and Progressive the Franchise Agreements from March 1, 2008 through eed on the extent of outstanding balances, and seek for audit #14-004 to the City under the Franchise WHEREAS, Progressive represents that -y accounts that relate to the Franchise Agreements d as part of the audit were truthful to the best of Progres have provided the City with records of all g the Period and that representations made ve's knowledge. NOW, THEREFORE, in consideration of the m. al covenants contained herein, the payments described herein, and for other consideration, th eceipt and sufficiency of all such consideration being expressly acknowledged by each of the ' ies, the Parties agree to resolve this matter of outstanding balances, and any and all pending an. •otential claims and defenses of the City against Progressive, and all future assigns, and all perso firms and corporate entities affiliated with each of them, arising from alleged issues of co ,liance with the Franchise Agreements reviewed during the Period and declare Progressive in 11 compliance with the Franchise Agreements for the entire Franchise Period as defined above, . follows: 1. Recitals. The above recitals are hereby made a part of this set forth herein. reement as if fully 2. Payment. Progressive shall pay to the City $376,252 ("Settlemenount") in full and final settlement of all claims and potential claims of the City related directly indirectly in any way to the Franchise Agreements for the entire Period. Payment shall •e made immediately in available United States funds in the form of a certified check in full u. final City Commission approval of this Agreement. SUBSTITUTED The Parties conclusively settle any and all claims and defenses and potential claims and efenses of each of said Parties against each other arising out of the Franchise Agreements ough the date of execution of this Agreement. It is recognized that new revenues subject to the Fr.. hise Agreement are being generated on a daily basis and this agreement in no way affects the c. itinuing obligations of Progressive under the Franchise Agreement. 3. Full Compliance and Release. Upon representations by Progressive, approval and execut of this Agreement, and payment of the Settlement Amount, the City shall deem Progressive ' 11 compliance with the Franchise Agreements reviewed for the Period as defined above. Upon .. ment of the Settlement Amount, the City knowingly and voluntarily releases, waives, and fore discharges any and all claims, rights, demands, causes of actions, of any kind whatsoever, known unknown, foreseen or unforeseen, foreseeable or unforeseeable, and any consequences thereo which the City may have against Progressive and all future assigns, persons, firms and corp ate entities affiliated with each of them, including al] sureties and/or bonding companies, in c• ection with the Franchise Agreements reviewed for the Period as defined above. The City a • acknowledges and agrees that this release and waiver bars any claim or demand for damages, osts, fees, or other expenses, including attorneys' fees, incurred in connection with the Franchi Agreements reviewed through the Period as defined above. The Parties fully, finally and fore ' resolve and release any and all disputes they may have or believe themselves to have against - h other with respect to the Franchise Agreements for the Period as defined above, whether those disputes are presently known or unknown, suspected or unsuspected. 4. No Evidence of Wrongdoin This Agreement shall not constitute and shall not be construed as evidence or an admission • liability or wrongdoing by Progressive, their officers, directors, employees, agents, attorneys, . • .resentatives, parents, affiliates, subsidiaries, successors, or assigns, with respect to the Franchise greements, and is being entered into by the parties to facilitate continuing operation of the franchi - within the City. 5. Acknowledgment. The Parties acknowled by counsel, have read and understand the foregoing, and t voluntarily accepted by all parties for the purpose of mal adjustment and settlement of any and all claims, disputed or othe that they have each been represented t the temrs of this Agreement are a full and final compromise, ise. 6. Governing Law. This Agreement shall be gove ed by and construed in accordance with the laws of the State of Florida. 7. No Third -Party Benefit. No statements or agreeme s set forth in this Agreement shall in any way inure to the benefit of any third party, unless o rwise provided for in this Agreement. This Agreement shall not create or give to any third pe on or entity any right, claim, benefit, defense, or cause of action against any Party hereto nor sha 't be construed as any admission by any Party that any compensation is owed to any third party n.. specifically identified in this Agreement. 8. Copies of Signatures. The parties agree photographic and electronic cop s of a signature shall be accepted as an authentic, original signature. SUBSTITUTED 9. Authorized Corporate Action. The undersigned, by their signatures, individually or corporate as the case may be, represent that this Agreement and execution hereof as been duly authorized by all necessary corporate actions and that they are duly authorized and powered to execute this release and to bind the Parties to the matter set forth herein. 10. Integration/Merger. This Agreement embodies the entire agreement between the p., es hereto with respect to the subject matter hereof, and supersedes all prior represen . ons, statements, and agreements, both written and oral, except for the settlement agreement tween Choice Environmental Services of Miami, Inc. and the City dated May 31, 2012, which r - City agrees continues in full force and effect. IN WI S WHEREOF, the Parties have knowingly, freely and voluntarily hereunder set their hands to th seal this day of April, 2014. PROGRESSIVE WASTE SOLUTIONS OF FL, INC., a Delaware corporation By: