HomeMy WebLinkAboutAgenda Bill 5C-GreenWaste 08/03/2009CITY OF 'PETAI;UMA, CALIFORNIA ~ o
AGE . A II:.L August 3, 2009
Agenda Title: Discussion and Possible Adoption of'Resoluton Approving IVleeting Date: August 3, 2009
Agreement with GreenWaste 'Recovery, Inc. to Pay $75,,0.00'to' he City of
Petaluma to Reconcile All Waste Hauling Franchise Fees, and Household lYleetin~ Time: 7:00 PlYI
Hazardous Waste (HHW) and AB 939 Fees Due to the. City through June 30,
2009
Cate~Orv: ^ Presentation ^ Appointments ^ Consent ^Public`Hearing ^ Unfinished Business ®New Business .
I)epartnient: Dire tor: ~ Contact Person: Phone Number:
.Public Works Vinc n Marengo- Vincent Marengo 778-4467
Total"Cost. of Proposal or Project: Name of Fund:
There are no costs associated.. with .this action, which will Account Number:
finalize all payments due the City through June 30, 2009. l 100.-16:100.41320 General Fund/PW
4213.24130.41320 PW/Spec Rev
Amount BudSeted: N/A 24132413'0.41320 Vehicle Impact/Special
Revenue
CurrentFund Balance: N/A (revenue source,
rather than appropriation)
Itecoirintendation: It is reconnnnended that~the.City Council take the following action:
Adopt resolution. approving agreement with. GreenWaste Recovery, Inc. to pay $75,000 to the City of Petaluma
-
franchise fees, and household hazardous; waste (HHW) and AB 939 fees due to the
to reconcile all waste hauling
City through June 30, 2009.
1. ^ .First reading of Ordinance approved unanimously, or with unanimous vote to allow posting prior to second reading
2. ^ First reading of Ordinance approved without unanimous vote: Ordinance:has been published/posted prior to second
reading; see Attachment
3. ^ Other action requiring special notice: Notice has been given, see Attachment,
Summary Statement: In the process of reviewing GreenWaste Recovery, Inc. (GWR) payments to the City for
solid waste hauling services, discrepancies were noted in both under and over payment of franchise fees, and
household~hazardous waste (HHW), and AB 939 fees paid to the City over multiple years. The City`s waste
management consultant, HF&F Consultants; LLC; informed staff that a detailed review to ascertain the exact
amount of the discrepancies could very well end up costing more than fhe amount owed to either party.
Therefore, it was xecommended,~and both taff and GWR. concur, that a negotiated payment of $75,000 to the
City, to reconcile fees due through.June 30, 2009, should satisfy any discrepancies and would be preferable to
embarking upon a costly audit.:
Attachments to, Agenda Packet Item:
1. Resolution
2. Proposed agreement (E~hibit A to resolution).
Rev'ewed b Finance Director:
. Reviewed by City Attorney: A roved b Cx ~ ana er:
Date: - 7 `~~ ~ ~~
Date: ---_
Date:. -~' ~~
ReV: # 2' Date:LBSt,ReVised: File: S:\Waste Management FolderlAeenda items\GreenWaste.
7/21/09, Recoven<\GWR Fecs Due Through 6-3-Q9\Final AB=and Draft
~
~ .Agreement\F1NAI_ AB Settlement of Green Waste Franchise Fec
~ Under a ment.DOC
C
AuGUs~ 3, 2009
AGEhTIDA.REPORT
FOI2
DISCUSSION AND POSSI>BI.E.~OPTION OF RESOLUTION E~PPROVING AGREEMENT-WITH
GREENWASTE RECOVERY, -INC.. TO PAY 575;00® TO THE CITY OF PETALUIVIA TO
RECONCILE ALI. `WASTE IIAUIING FRANCHISE FEES, AND I~OUSEHOLD I$A7_AIt~OUS
WASTE ~i~IW) AND ~ 939 g+'EES DiJE'TO THE CITY THROUGHTUNE 3®, 2009
I. RECOMMENDATION:
Adopt resolution approving agreement with, GreenWaste Recovery, Inc. to pay $75,000 to the
City of Petaluma. to reconcile ali'waste hauling franchise .fees, and household hazardous waste
(HHW) and AB 939 fees. due to the City through June 30, 2009.
2. BACKGROUND:
In preparation for assignment of the GreenWaste Recovery, Inc. franchise agreement for solid
waste hauling, municipal management consultants HF&H Consultants, LLG, discovered
discrepancies, over multiple years, in fees due the City. In a number of cases, fees were
underpaid, and in another, fees were overpaid. Through discussions with GWR, it was agreed
that a detailed audit at this time would be costly and ..delay the timing of the assignment, Both
the City and GWR feel that the amount of $75,000 paid to the City would satisfy any
discrepancies.
3. DISCUSSION:
The City has been. in negotiations with GWR and the Ratto Group (Redwood Empire
Disposal) regarding assignment of the GWR franchise agreement. For this reason, it is timely
to reconcile any discrepancies and bring closure to franchise fees owed to the City through
June 30, 2009, prior to action on .the franchise agreement assignment.
4. )C+'INANCIAL I'MRACTS:
Approval of this resolution will result in $75;000 in franchise and other fees paid to the City
by GWR.
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S:1V1%asteManagement Folder\Agenda ]terns\GreenWaste Recovcr~~\G~VR Fees Due Through 6-3-09\Final AB and Draft
Agreeincnt\FINAL AB Settlement of Grcenwaste Franchise Fee Underpayment.DOC
RESOLUTION
APPRO~YI~TG AGIt)E>ElVIEN7' WIT'>FI GI2EENWAST-E ~COVERY, INC. TO PAY $75,000 TO
TIIE CITY OF PETALUIVIA TO RECONCILE AI,L WASTE RULING FRANCIIISE FEES,
AND IiOUSEIIOLD )FIA_7._AI2~OU5 WASTE ~ AND AE 939 FEES DUE T'IIItOUGII
,TUNE 30, 2009
W>EIEREAS, in the process of reviewing GreenWaste Recovery, Inc. (GWR) franchise fees and
other payments to the City for solid waste hauling, household hazardous waste (HHW) and AB 939 fees,
pursuant to that certain Franchise Agreement Between the City of Petaluma and GreenWaste Recovery,
Inc. for Solid Waste, Recycling Materials and Yard Trimming Services, dated and effective September
13, 2005, subject to rate period and rate adjustments made pursuant to Resolution No. 2008-182 N.C.S.,
adopted September 15,.2008, and as amended by First Amendment to .the Franchise Agreement between
the City of Petaluma and Greenwaste Recovery, Inc. for Solid Waste, Recyclable Materials and Yard
Trimmings Services, approved by City Ordinance No. 2341 N.C.S. on July 20, 2009 ("the Franchise
Agreement"), discrepancies were noted in both under and over payment of fees paid to the City; and
VVIIEREAS, the City's waste management consultant, HF&H Consultants, LLC, informed staff
that a detailed review to ascertain the exact amount of the discrepancies could very well end up costing
more than the amount owed to either party; and
WI~EREAS, consultant recommended, and both staff and GWR concur, that a negotiated
payment of $75,000 to the City,. to cover fees due to the City under the Franchise Agreement to and
including June 30, 2009, would satisfy any discrepancies to that date, and would be preferable to
embarking upon atime-consuming and costly audit.
NOW, TIIEREFORE, DE IT RESOLVED, that the City Council of the City of Petaluma:
1. Approves the payment of $75,000 by GreenWaste .Recovery, Inc. to the City of Petaluma as
sufficient to compensate for all unpaid waste hauling franchise, HHW and AB 939 fees due from
GreenWaste Recovery, Inc. to the City pursuant to the Franchise Agreement to and including
June 30, 2009, and authorizes the City Manager to execute the Agreement attached as Exhibit A
hereto and incorporated herein by reference approving said payment as a settlement of all claims
of underpayment and/or overpayment of the described fees.
1268082.1
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S:\~~~aste Management FolderlAgenda items\Greenwaste Recovery\G1 R Fees DuerThn~ugh 6-3-09\Final AB and Draft
Agrcement\FINAL AB Settlement of GrecnVl!aste Franchise Fee Underpayment_DOC
~~ td 5C;9: li~~ . 4,i',
SETT>C.EIVI~NT AGREEMENT Alm RELEASE
IN CONSIDERATION OF the settlementprovisions set forth in this Settlement
Agreement and Release ("Agreement"), made and entered into this ,day of July
2009, the City of Petaluma, a California municipal corporation,. ("City") and GreenWaste
Recovery, Inc., a California corporation, together with its..affiliates, subsidiaries; directors,
officers, employees; agents;'attorneys, and insurers ("GreenWaste"), do hereby agree as
follows. City and GreenWaste: are sometimes referred to hereafter as a "Party" or
collectively as "the Parties."
REC'I$`AI:S
1. City and GreenWaste entered into that certain Franchise Agreement
Between the City of Petaluma and: GreenWaste Recovery, Inc. for Solid Waste;
Recycling Materials and Yard Trimming Services, dated and effective September 13,
2005, subject to rate.period and .rate adjustments made pursuant to Resolution No. 2008-
182 N.C.S., adopted September 15, 2008 and as amended by First Amendment to the
Franchise Agreement between the City of Petaluma and GreenWaste Recovery, Inc. for
Solid Waste, Recyclable 1Vlaterials and Yard'Trimmings Services approved by City
Ordinance No. 2341 N.C.S. on July 20, 2009 ("the Franchise Agreement").
2. The Franchise Agreement requires that certain franchise fees and other
s
payments to the City for solid waste hauling, household hazardous waste (HHW) and
AB 939 fees :pursuant to the Franchise Agreement (collectively, ~ "the Fees") be paid by
GreenWaste to the City.
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3. Discrepancies have arisen regarding; the amount of the Fees due- and
payable by GreenWaste to the City pursuant to the Franchise Agreement to and
including June 30, 2009.
4. City and GreenWaste have decided to resolve all of their differences
concerning the payment of the. Fees described.above and have agreed. to settle their
differences as to payment of the Fees as>set forth in this Settlement Agreement And
Release.
1VIQTTUAL RELEASE.
Each Party to this,Agreement hereby releases and forever discharges each other
Party to this Agreement from any and all claims, .demands; obligations, or causes of action
of any nature whatsoever, whether based on tort, contract; indemnity; or any other theory
of recovery and whether`for compensatory or punitive damages, relating to the Fees and
which were asserted and/or could have been asserted in this claim.
SETTLEIVIENT TERIVIS
GreenWaste shall pay to the order ofthe City the sum of Seventy Five Thousand
Dollars ($75;000.00) in -full and complete settlement of his claim upon execution of this
signed Agreement. Payment sh"alTbe received within fire days of City's transmission of an
executed copy of this Agreement to GreenWaste.
ACKN®WLEDGEMENT ®F"COIVIPROIVIISE
The Parties acknowledge that each Party executes and agrees to this settlement as a
compromise and this Agreement is not to be construed as an admission of liability.
WAIVER OF FUTiJRE CLAIMS AS T® PAYNIEIVT OF TIIE FEES -CITY
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Y~
This waiver and release :does not extend to any claim by the City which
exists or may exist pursuant to the Franchise Agreement. other than. claims for
damages relating to the amount and/or transmission of payment, underpayment,
and/or overpayment of the Fees due: from GreeriWaste to'the City.
The City expressly waives and' assumes the risk of any and all claims for damages
relating to the :Fees payable. to the City by GreenWaste under the Franchise Agreement for
the periodao and including June 3Q; 2009 which exist;as of this date, but of which City is
unaware, whether through'gnorance, oversight; error; negligence, or otherwise, and which,
if known, would,materially affect its:decision to enter°into this settlement, and further
assumes the risk that it.may suffer damages in the future,relafing to the Fees which it does
not now anticipate orauspect may occur as a result of any matter referred to herein, and
therefore waives all rights under section 1542 of the Civil Code of California, which states
as follows:
A general release does:not-extend to elaims.which the creditor does
not know or.'snspect to exist::in his favor at •the time of executing the
release, vvhicl if known: by .him.. must have materially affected his
settlement with the debtor.
WAIVER OF 1N~J~1/ CI.A><MS AS' Z'O PAYIVIEN~' OF' T)~:1~ES - GREEIVVVAS'I')E
GreenWaste expresslywaves.and assumes the risk of:any and all claims for
damages relating to the Fees payable byGreenWaste to the'City under the Franchise
Agreement forthe period to and including June 30, 2009, which exist as of this date, but of
which 6reenW. ,, aste is unaware, whether through ignorance; oversight, error; negligence, or
otherwise, and which, if known, would materially affect its decision to enter into this
settlement; and further assumes the risk that it may suffer damages in the future-relating to
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the Fees which it does not now anticipate or suspect,may occur as a result of anymatter
referred to. herein, and therefore waives all rights under°section 1542 of the•Civil Code of
California, which states as follows:
A generalrelease does not extend ,to claims which the creditor does
not know or-suspect to exist;n hs,:favor atahe tune of executing the
.release, which if known by.him anust have.materially affected his
settlement with the debtor.
WARRANT'S TO CA:PACI'TY TO' EXECiTTE AGREEMENT
Each Party represents and warrants that no otfier person or entity has or has had
any interest in its respective. claims,. demands,: obligations, or causes of action referred to in
this Agreement; that each Party, has the sole right and exclusive authority to execute this
Agreement. Each Party warrants that it has not sold, assigned, transferred, conveyed, or
otherwise disposed of anyof its respective.claims; demands; obligations, or causes of
action referred to in this; Agreement. Citywarrants that it has the sole right and exclusive
authority to receive the sumspecified in this Agreement. . .
DISCLAIIVIER OF LIABILITY -CITY
The City agrees and acknowledges that if accepts payment of the sum specified in
this Agreement as a full and complete compromise of matters involving disputed issues;:
that neither payment of this sum by GreenWaste nor-any event occurring during- the
negotiations of this ,settlement, nor any statement or communication made in connection
therewith, by-any party released herein, and/or by their attorneys or representatives; shall
be considered an admission by GreenWaste, and that City further acknowledges that no
past or present wrongdoing by GreenWaste shall be implied therefrom.
Page 4of 7
This settlement is made with the understanding..that it is not to be construed as an.
admission of liability by GreenWaste, and~thatit is made solely'for the purpose of
compromise of all issues relating to payment of the Fees pending between GreenWaste
and .City.
DISCT.AIIVIEIt O>F EIAI3ILITY - GRE>ENWASTE
GreenWaste agrees and acknowledges that it makes payment of the sum specified
in this Agreement as a full and complete compromise•of matters involving disputed issues;
.that neither payment of this sum'by GreenWaste nor any event occurring during the
negotiations of this settlement, nor any statement or communication made in.connection
therewith, by any party released herein, and/or by their attorneys or representatives, shall
be considered an admission by City, and that,GreeriWaste further acknowledges that no
past or present wrongdoing by City shall be implied therefrom.
This settlement is;made with the understanding-that it is not to be construed as an
admission of liability by City,. and that it is made solely for the purpose of compromise of
all issuesrelating to payment"of the Fees pending between GreenWaste and City.
PAYNdENT OF A'T1'OItNEY I+'EES
Each Party shall be responsible for the payment of:its own attorney fees_and costs,
and all of its own expenses'in connection with°the matters=contained in this Agreement.
ENTIltE AGREENIEN'I'
This written document .contains the entire. Agreement between the Parties and
supersedes and' replaces any and' all prior or contemporaneous agreements or
understandings, written or oral, with regard to the matters set forth in it. This Agreement
Page Sof 7
u
may be amended or modified in whole or in part at any time only by an agreement in
writing executed in the same manner as this Agreement.
C®NSTRIJCTION BY CALIFORNIA I.AW
1. This Agreement is entered into in the State of California and shall be construed and
interpreted according to its laws. The parties agree that;. notwithstanding Civil Code
section 1'654, any uncertainty in the Agreement shall- not. be construed against the drafter
of the Agreement.
INTERPRETATION' OF AGREEMENT
In the event that any dispute arises over the interpretation of this Agreement, or the
rights or'the obligations oftheParties thereunder;:if shall be; resolved by binding azbitration
in accordance with Code of Civil Procedure section -1280 et seq. In any .such arbitration,
in addition to any other sum the arbitrator may award, the prevailing party in such
arbitration will be awarded all attorneys' fees the prevailing party has necessarily
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incurred to obtain the benefits to which it is entitled under this Agreement..
IN WITNESS WHEREOF, the parties execute his Agreement as of the dates
written below.
CITY OF PETALUMA GREENWASTE RECOVERY,
INC:
" ~---
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City Manager
Date:
ATTEST:
City Clerk
APPROVED AS TO FORM:
City Attorney
APPROVED:
Department Director
APPROVED:
Risk Manager
APPROVED:
Finance Director
1268'120.1
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Richard Cristina
President
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