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HomeMy WebLinkAboutResolution 2009-134 N.C.S. 08/03/2009 Resolution No. 2009-134 N.C.S. of the City of Petaluma, California APPROVING AGREEIVIENT WITH GREENWASTE RECOVERY, INC. TO PAY $75,000 TO THE CITY OF PETALUMA TO RECONCILE ALL WASTE HAULING FRANCHISE FEES, AND HOUSEHOLD HAZARDOUS WASTE (HHW) AND AB 939 FEES DUE THROUGH JUNE 30, 2009 WHEREAS, 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, WHEREAS, 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, WHEREAS, 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, THEREFORE, BE 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 Resolution No. 2009-134 N.C.S. Page 1 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. Under the power and authority conferred upon this Council by the Charter of-said City. REFERENCE: I hereby certify the foregoing Resolution was introduced and adopted by the Ap~rov s t Council of the City of Petaluma at a Regular meeting on the 3`d day of August, for 2009, by the following vote: City Att ney AYES: Vice Mayor Barrett, Glass, Rabbitt, Renee, Mayor Torliatt NOES: None ABSENT: Harris, Elealy ~ ~ r ABSTAIN: None '0 ATTEST: City Clerk Mayor '~-l Resolution No. 2009-134 N.C.S. Page 2 EXHIBIT A TO RESOLUTION SETTLEMENT AGREEMENT AND RELEASE IN CONSIDERATION OF the settlement provisions 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." RECITALS 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 Materials 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 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. 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. MUTUAL 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. SETTLEMENT TERMS GreenWaste shall pay to the order of the City the sum of Seventy Five Thousand Dollars ($75,000.00) in full and complete settlement of this claim upon execution of this signed Agreement. Payment shall be received within five days of City's transmission of an executed copy of this Agreement to GreenWaste. ACKNOWLEDGEMENT OF COMPROMISE 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 FUTURE CLAIMS AS TO PAYMENT OF THE FEES -CITY 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 Page 1 of b transmission of payment, underpayment, and/or overpayment of the Fees due from GreenWaste 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 period to and including June 30, 2009 which exist as of this date, but of which City 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 the Fees which it does not now anticipate or suspect 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 claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor. WAIVER OF FUTURE CLAIMS AS TO PAYMENT OF THE FEES -GREENWASTE GreenWaste expressly waives and assumes the risk of any and all claims for damages relating to the Fees payable by GreenWaste to the City under the Franchise Agreement for the period to and including June 30, 2009, which exist as of this date, but of which GreenWaste 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 the Fees which it does not now anticipate or suspect 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 claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor. WARRANTY TO CAPACITY TO EXECUTE AGREEMENT Each Party represents and warrants that no other 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 any of its respective claims, demands, obligations, or causes of action referred to in this Agreement. City warrants that it has the sole right and exclusive authority to receive the sum specified in this Agreement. DISCLAIMER OF LIABILITY -CITY The City agrees and acknowledges that it 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. This settlement is made with the understanding that it is not to be construed as an admission of liability by GreenWaste, and that it is made solely for the purpose of compromise of all issues relating to payment of the Fees pending between GreenWaste and City. DISCLAIMER OF LIABILITY -GREENWASTE Resolution No. 2009-134 N.C.S. Page 2 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 GreenWaste 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 issues relating to payment of the Fees pending between GreenWaste and City.. PAYMENT OF ATTORNEY FEES 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. ENTIRE AGREEMENT 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 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. CONSTRUCTION BY CALIFORNIA LAW 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 1654, 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 of the Parties thereunder, it shall be resolved by binding arbitration, 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 incurred to obtain the benefits to which it is entitled under this Agreement. IN WITNESS WHEREOF, the parties execute this Agreement as of the dates written below. CITY OF PETALUMA GREENWASTE RECOVERY, INC. City Manager Richard Cristina President Date: Date ATTEST: City Clerk APPROVED AS TO FORM: City Attorney Resolution No. 2009-134 N.C.S. Page 3 APPROVED: Department Director APPROVED: Risk Manager APPROVED: Finance Director 1268120.1 Resolution No. 2009-134 N.C.S. Page 4