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HomeMy WebLinkAboutExhibit - AgreementSETTLEMENT AGREEMENT AND RELEASE This SETTLEMENT AGREEMENT AND RELEASE ("Agreement") is made and entered into this day of November, 2014, by and among Southern Waste Systems, L.L.C., ("SWS"), and the City of Miami, a municipal corporation (the "City"). SWS and the City are collectively the "Parties." WITNES SETH: WHEREAS, SWS 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, in connection with a dispute between the Parties regarding how revenues were accounted for under the Franchise Agreements, SWS commenced an action against the City, styled Southern Waste Systems, LLC v. City of Miami, Florida, Case No. 13-00619 CA02 (11th Judicial Circuit, Miami -Dade County, Florida), and the City asserted a counterclaim against SWS in this lawsuit (collectively, the "Action"); and WHEREAS, since the filing of the Action, the Parties have continued to work together in good faith and engaged in amicable discussions that have led the Parties to settle the Action based on the terms set forth in this Agreement; and WHEREAS, pursuant to an audit by the City's Auditor General, the City and SWS have reviewed the billing records under the Franchise Agreements from October 1, 2004 through September 30, 2012 (the "Period"), have agreed on the extent of outstanding balances, and seek full payment in connection with all fees due for audit #13-004 to the City under the Franchise Agreements; and WHEREAS, SWS 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 SWS'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 SWS, and all future assigns, and all persons, firms and corporate entities affiliated with each of them, arising from issues of compliance with the Franchise Agreements reviewed during the Period and declare SWS in full compliance with the Franchise Agreements for the Franchise Period as defined above, as follows: / 3 -/0 CASE NO.: 13-00619 CA 02 1. Recitals. The above recitals are hereby made a part of this Agreement as if fully set forth herein. 2. Payment. SWS shall pay to the City $1,405,133.00 ("Payment Amount") in full and final resolution of all claims and potential claims of the City related directly or indirectly in any way to the Franchise Agreements for the Period, including, but not limited to, any and all Franchise Fees or any other fees, damages or amounts due the City under or in connection with the Franchise Agreements for the 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. It is recognized that new revenues subject to the 2010 Franchise Agreement are being generated on a daily basis and this agreement in no way affects the continuing rights and obligations of SWS and the City under the 2010 Franchise Agreement. SWS expressly acknowledges that it must pay franchise fees on construction and demolition hauling and related activities and that no basis for estoppel or other defense exists to payment of those or any other fees under the 2010 Franchise Agreement. 3. Mutual Release. Upon payment of the Payment 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 SWS and all future assigns, persons, finns 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 defused 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. Upon execution of this agreement, the SWS 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 SWS may have against the City 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 and SWS also acknowledge and agree that this release and waiver bars any claim or demand for damages, refunds, costs, fees, or other expenses, including attorneys' fees, incurred in connection with the Franchise Agreements reviewed through the Period as defined above. 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. Dismissal with prejudice. Upon final approval of this agreement by the City Commission and payment of the amounts reflected in section 2, supra, the City and SWS will file a joint stipulation of dismissal of their respective claims with prejudice in the Action, including all claims asserted or that could have been asserted against each other in the Action in connection with the Franchise Agreements for the Period, with each Party to bear its own attorneys' fees and costs incurred in the Action. A form joint stipulation of dismissal with prejudice and agreed 2 CASE NO.: 13-00619 CA 02 order of dismissal with prejudice are attached hereto as Exhibit 1. The Parties acknowledge and agree that this Agreement in no way impairs the Parties' rights and obligations under the 2010 Franchise Agreement with respect to payments, fees, costs or other expenses due based on revenues generated after the Period. 5. No Admission. The Parties agree that this Agreement is a reflection of their desire and intent to resolve their differences without the need for further litigation. Accordingly, nothing contained in this Agreement shall be considered to be an admission of liability by any Party hereto, and while the Agreement may be made available for review to the Court in the Action upon the Court's request, this Agreement shall not be filed in connection with the Action. 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 resolution 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 Beneficiaries. 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. 11. 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. 12. No Interpretation Against Drafter. This Agreement is the product of negotiation between the parties and there shall be no interpretation against either party. 3 CASE NO.: 13-00619 CA 02 IN WITNESS WHEREOF, the Parties have knowingly, freely and voluntarily hereunder set their hands to this seal this day of November, 2014. Southern Waste Systems, L.L.C. By: Its: ATTEST: CITY OF MIAMI, FLORIDA Todd B. Hannon City Clerk APPROVED AS TO FORM AND CORRECTNESS: Victoria Mendez City Attorney Daniel J. Alfonso City Manager 4 CASE NO.: 13-00619 CA 02 IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI- DADE COUNTY, FLORIDA CIRCUIT CIVIL DIVISION CASE NO. 13-00619 CA 02 SOUTHERN WASTE SYSTEMS, LLC a Florida limited liability company, Plaintiff, vs. CITY OF MIAMI, FLORIDA, a Florida municipality, Defendant. STIPULATION OF DISMISSAL WITH PREJUDICE Plaintiff, Southern Waste Systems, LLC, and Defendant, City of Miami, hereby stipulate to the entry of an Order of Dismissal with Prejudice of this action without further notice or hearing, dismissing this action with prejudice, including Plaintiff's Second Amended Complaint and Defendant's Counterclaim, together with all other claims, counterclaims, cross -claims and third -party claims that could have been brought in this action in connection with payments, fees, costs or other expenses due under the Parties' franchise agreements based on revenues generated through and including September 30, 2012. The Parties agree that this Stipulation in no way impairs the Parties' rights and obligations under the October 1, 2010 franchise agreement (approved by Resolution No. 10-0419) with respect to payments, fees, costs or other expenses due under that agreement based on revenues generated after September 30, 2012. Exhibit 1 CASE NO.: 13-00619 CA 02 The Parties agree to bear their own respective attorneys' fees and costs incurred in this action. The Parties further agree that the Court will enter the Agreed Order of Dismissal with Prejudice attached hereto. DATED this day of December 2014. SHUBIN & BASS, P.A. By: John K. Shubin, Esq. Florida Bar No. 771899 46 S.W. 1st Street, 3rd Floor Miami, FL 33130 305-381-6060 (telephone) 305-381-9457 (facsimile) Counsel for Plaintiff CITY OF MIAMI By: Henry J. Hunnefeld, Esq. Assistant City Attorney Florida Bar No. 343811 444 S.W. 2nd Avenue, Suite 945 Miami, FL 33130 305-416-1800 (telephone) 3 05-416-18 01 (facsimile) Counsel for Defendant Exhibit 1 CASE NO.: 13-00619 CA 02 IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI- DADE COUNTY, FLORIDA CIRCUIT CIVIL DIVISION CASE NO. 13-00619 CA 02 SOUTHERN WASTE SYSTEMS, LLC a Florida limited liability company, Plaintiff, vs. CITY OF MIAMI, FLORIDA, a Florida municipality, Defendant. AGREED ORDER OF DISMISSAL WITH PREJUDICE THIS CAUSE having come before the Court on the Stipulation of Dismissal With Prejudice between Plaintiff, Southern Waste Systems, LLC, and Defendant, City of Miami, and the Court having reviewed the Stipulation and being otherwise duly advised in the premises, it is hereby ORDERED AND ADJUDGED that the parties' Stipulation of Dismissal with Prejudice is hereby ACCEPTED. This action, including Plaintiffs Second Amended Complaint and Defendant's Counterclaim, together with all other claims, counterclaims, cross -claims, and third party claims that could have been brought in this action in connection with payments, fees, costs or other expenses due under the Parties' franchise agreements based on revenues generated through and including September 30, 2012, are hereby DISMISSED WITH PREJUDICE. Exhibit 1 CASE NO.: 13-00619 CA 02 DONE AND ORDERED in Chambers at Miami -Dade County, Florida on Copies furnished to: Counsel of Record SPENCER EIG CIRCUIT COURT JUDGE Exhibit 1