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MUTUAL SETTLEMENT AGREEMENT AND RELEASE
This Mutual Settlement Agreement and Release (this "Agreement") is made as of
Octobe5t P 2018 (the "Effective Date"), by and among the City of Corpus Christi, a
Texas home rule municipal corporation("Corpus Christi"); Cefe Landfill TX, LP f/k/a BFI
Elliott Landfill TX, LP ("Cefe"); BFI Waste Systems of Texas, LP n/k/a Blue Ridge
Landfill TX, LP ("BFI Waste Systems"); BFI Waste Services of Texas, LP d/b/a Allied
Waste Services of Corpus Christi / Republic Services of Corpus Christi ("BFI Waste
Services"). Corpus Christi, Cefe, BFI Waste Systems, and BFI Waste Services are
sometimes referred to herein individually as a "Party" and collectively as the "Parties."
RECITALS
WHEREAS, in February 2005, Corpus Christi and BFI Waste Systems entered into
a Waste Disposal Agreement regarding the Cefe Valenzuela Municipal Landfill (the
"Waste Disposal Agreement");
WHEREAS, effective February 24, 2005, Corpus Christi and BFI Waste Systems
of North America, Inc. (inadvertently referred to as BFI Waste Services of North America,
Inc.) entered into a Landfill Services Agreement (the "Landfill Services Agreement") and
BFI Waste Systems of North America, Inc. subsequently assigned the Landfill Services
Agreement to Cefe;
WHEREAS, Corpus Christi has made certain claims for alleged shortfalls in
guaranteed tonnage under Section 2.2.1 of the Waste Disposal Agreement for the contract
years 2016-17 and 2017-18;
WHEREAS, Cefe has made certain claims for breach of Section 2.03(h) of the
Landfill Services Agreement relating to the location of borrow pits or stockpiles containing
cover materials; and
WHEREAS,the Parties desire to enter into this Agreement to fully resolve and settle
such claims.
NOW, THEREFORE, in consideration of the premises and agreements contained
herein and other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the Parties, intending to be legally bound, hereby agree as follows:
1. Definitions. The following definitions will apply to the listed terms wherever
those terms appear in this Agreement.
"Agreement" has the meaning given in the introductory paragraph.
"BFI Released Claims" has the meaning given in Section 4 below.
C2018-668
10/30/18
M2018-212
Republic Services
SCANNED
"BFI Released Parties" means Cefe; BFI Waste Services; BFI Waste Systems; all
companies or firms affiliated with Cefe, BFI Waste Services, or BFI Waste Systems,
including all parent and subsidiary entities; all predecessors, successors, and assigns of
Cefe, BFI Waste Services, BFI Waste Systems; and all agents, employees, officers,
directors, shareholders, members, partners, and attorneys of any of the foregoing.
"BFI Waste Services" has the meaning given in the introductory paragraph.
"BFI Waste Systems" has the meaning given in the introductory paragraph.
"Cefe" has the meaning given in the introductory paragraph.
"Corpus Christi" has the meaning given in the introductory paragraph.
"Corpus Christi Released Claims" has the meaning given in Section 3 below.
"Corpus Christi Released Parties" means Corpus Christi; all predecessors,
successors, and assigns of the City of Corpus Christi; and all officials, agents, employees,
officers, directors, shareholders, members, partners, and attorneys of any of the foregoing.
"Effective Date" has the meaning given in the introductory paragraph.
"Landfill Services Agreement" has the meaning given in the recitals.
``Party" and "Parties" have the meanings given in the introductory paragraph.
"Person" means an individual or a corporation, firm, limited liability company,
partnership, joint venture, trust, estate, unincorporated organization, association,
governmental authority or political subdivision thereof, or other entity.
"Waste Disposal Agreement" has the meaning given in the recitals.
2. General. By their execution of this Agreement, the Parties acknowledge the
receipt and sufficiency of the consideration exchanged hereunder. The consideration
exchanged by any Party is not an admission of liability and shall not be so construed. Each
of the Parties denies any liability. The Parties acknowledge that this Agreement is made
as a compromise to avoid further expense.
3. Release by Corpus Christi. In consideration for the promises and covenants
made herein, the receipt of which is hereby acknowledged, Corpus Christi, for itself and
its successors and assigns, hereby remises, releases, acquits, and forever discharges the BFI
Released Parties from all existing, future, known, and unknown claims, demands, and
causes of action for all existing, future, known, and unknown damages, remedies, or relief
that arise out of any actual or alleged shortfall in guaranteed tonnage under Section 2.2.1
of the Waste Disposal Agreement for the contract years 2016-17 and 2017-18, including
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but not limited to (a) any claim, demand, or cause of action of any nature, whether in
contract or in tort, or arising under or by virtue of any law, statute, or regulation, for past,
present, future, known, and unknown personal injuries, property damage, and all other
losses and damages of any kind, including but not limited to actual damages, exemplary or
punitive damages, statutory damages, fines, penalties, assessments, attorneys' fees, costs,
and interest; and (b) any claim, demand, or cause of action that is now recognized at law
or in equity or that may be created or recognized in the future by any manner, including
without limitation by statute, regulation, or judicial decision (the "Corpus Christi Released
Claims").
Corpus Christi acknowledges that it is aware that it may hereafter discover facts in
addition to or different from those which it now knows or believes to be true with respect
to the subject matter of the Corpus Christi Released Claims, but that it is its intention hereby
to fully, finally, and forever settle and release such claims, and that in furtherance of such
intention, the release herein given shall be and remains in effect as a full and complete
release of the BFI Released Parties of all Corpus Christi Released Claims, notwithstanding
the discovery by Corpus Christi of the existence of any such additional or different facts.
4. Release by Cefe. In consideration for the promises and covenants made
herein, the receipt of which is hereby acknowledged, Cefe, for itself and its successors and
assigns, hereby remises, releases, acquits, and forever discharges the Corpus Christi
Released Parties from all existing, future, known, and unknown claims, demands, and
causes of action for all existing, future, known, and unknown damages, remedies, or relief
that arise out of any actual or alleged breach of Section 2.03(h) of the Landfill Services
Agreement occurring on or before October 1, 2018, including but not limited to (a) any
claim, demand, or cause of action of any nature, whether in contract or in tort, or arising
under or by virtue of any law, statute, or regulation, for past, present, future, known, and
unknown personal injuries, property damage, and all other losses and damages of any kind,
including but not limited to actual damages, exemplary or punitive damages, statutory
damages, fines, penalties, assessments, attorneys' fees, costs, and interest; and (b) any
claim, demand, or cause of action that is now recognized at law or in equity or that may be
created or recognized in the future by any manner, including without limitation by statute,
regulation, or judicial decision (the "BFI Released Claims").
Cefe acknowledges that it is aware that it may hereafter discover facts in addition
to or different from those which it now knows or believes to be true with respect to the
subject matter of the BFI Released Claims, but that it is its intention hereby to fully, finally,
and forever settle and release such claims, and that in furtherance of such intention, the
release herein given shall be and remains in effect as a full and complete release of the
Corpus Christi Released Parties of all BFI Released Claims, notwithstanding the discovery
by Cefe of the existence of any such additional or different facts.
5. Consent to Assignment of Waste Disposal Agreement. Pursuant to Section
6.1 of the Waste Disposal Agreement, Corpus Christi hereby consents to the assignment of
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the Waste Disposal Agreement to BFI Waste Services. BFI Waste Systems hereby assigns
the Waste Disposal Agreement to BFI Waste Services. BFI Waste Services hereby
assumes all obligations and duties of Hauler under the Waste Disposal Agreement.
6. End of Force Majeure. The Parties agree that BFI Waste Services will not
rely on Force Majeure arising from Hurricane Harvey to delay or excuse performance
under the Waste Disposal Agreement on or after November 11, 2018.
7. Representations of Corpus Christi. Corpus Christi represents the following
to Cefe, BFI Waste Systems, and BFI Waste Services:
a. Before executing this Agreement, Corpus Christi became fully
informed of the terms, contents, conditions, and effect of this Agreement;
b. The signatory to this Agreement, for or on behalf of Corpus Christi,
is fully authorized and legally competent to execute this Agreement and is a duly
authorized representative of Corpus Christi;
c. Corpus Christi has not assigned, pledged, or in any other manner sold
or transferred any right,title, interest, or claim that arises out of or relates to this Agreement
or performance under the Waste Disposal Agreement or the Landfill Services Agreement;
and
d. This Agreement is fully and forever binding on Corpus Christi.
8. Representations of Cefe,BFI Waste Systems, and BFI Waste Services. Cefe,
BFI Waste Systems, and BFI Waste Services represent the following to Corpus Christi:
a. Before executing this Agreement, Cefe, BFI Waste Systems, and BFI
Waste Services became fully informed of the terms, contents, conditions, and effect of this
Agreement;
b. The signatories to this Agreement, for or on behalf of Cefe,BFI Waste
Systems, and BFI Waste Services, are fully authorized and legally competent to execute
this Agreement and are duly authorized representatives of Cefe, BFI Waste Systems, and
BFI Waste Services, respectively;
c. Neither Cefe, BFI Waste Systems, nor BFI Waste Services has
assigned, pledged, or in any other manner sold or transferred any right, title, interest, or
claim that arises out of or relates to this Agreement or performance under the Waste
Disposal Agreement or the Landfill Services Agreement, except as otherwise stated herein;
and
d. This Agreement is fully and forever binding on Cefe, BFI Waste
Systems, and BFI Waste Services.
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9. Final Settlement:
a. The Parties agree that no promise or representation of any kind has
been made by any Party or Person, except as is expressly stated in this Agreement;
b. In entering into this Agreement, the Parties are not relying in any
manner on any fact, information, statement, disclosure, nondisclosure, or representation
made by any other Party or Person, except as is expressly stated in this Agreement, or on
any alleged duty of any other Party to disclose any facts or information;
c. In entering into this Agreement, the Parties have had the benefit of the
advice of lawyers of their own choosing; and the Parties enter into this Agreement freely,
by their own choice and judgment, and without duress or other influence; and
d. This Agreement is a full, final, and complete release and settlement of
the BFI Released Claims and the Corpus Christ Released Claims, and the consideration
received hereunder is the only benefit each Party will ever receive as a result of the BFI
Released Claims and the Corpus Christ Released Claims.
10. Miscellaneous.
a. Successors and Assigns. This Agreement shall be binding on and
inure to the benefit of the successors and assigns of the Parties.
b. Amendment; No Waiver. No amendment, change or modification of
this Agreement shall be valid unless made in writing and signed by each of the Parties. No
waiver of any term of this Agreement shall be valid unless made in writing and signed by
the Party making such waiver.
c. Entire Agreement. This Agreement constitutes the entire agreement
among the Parties with respect to the subject matter hereof, and supersedes all discussions,
agreements, and understandings, both written and oral, among the Parties with respect
hereto.
d. Counterparts. This Agreement may be executed in duplicate
counterparts. Each counterpart may be delivered electronically by PDF file, and such
scanned signature shall have the same force and effect as an original signature. Hard and
electronic copies of this Agreement shall be as valid and binding as an original copy.
e. Governing Law. The laws of the State of Texas shall govern the
construction and the interpretation of this Agreement, excluding any principle of conflict
of laws that might otherwise direct the application of the laws of another jurisdiction.
f. Jurisdiction; Venue. The Parties agree that venue for any dispute
arising out of this Agreement shall be in Nueces County, Texas, which shall be the
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exclusive venue for any such action, and each of the Parties irrevocably consents to the
jurisdiction of the federal and state courts (and of the applicable appellate courts) located
in Nueces County, Texas in any such action or proceeding. In any dispute arising out of
this Agreement, the prevailing party shall recover its reasonable and necessary attorneys'
fees, costs and expenses.
g. Interpretation. The headings of Sections in this Agreement are
provided for convenience only and will not affect its construction or interpretation. All
words used in this Agreement will be construed to be of such gender or number as the
circumstances require. Unless otherwise expressly provided, the words "include,"
"includes" and "including" shall be deemed to be followed by the words "without
limitation." The word "or" will have the inclusive meaning represented by the phrase
"and/or" unless the context requires otherwise. The words "herein," "hereof," "hereby,"
"hereto"and"hereunder"refer to this Agreement as a whole. The Parties have participated
jointly in the negotiation and drafting of this Agreement. If an ambiguity or question of
intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the
Parties and no presumption or burden of proof shall arise favoring or disfavoring any Party
by virtue of the authorship of any of the provisions of this Agreement. Unless the context
requires otherwise, references herein (i) to Sections mean the Sections of this Agreement
and (ii) to an agreement, instrument or other document means such agreement, instrument
or other document as amended, supplemented or modified from time to time to the extent
permitted by the provisions thereof.
[Remainder of page intentionally left blank; signature page follows.]
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IN WITNESS WHEREOF, the Parties have executed this Agreement by their duly
authorized representatives.
CITY OF CORPUS CHISTI
ATTEST: � /
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B /ii // RE=SCCA HUERT � ~
/,y' %�� Approved as to form: / 1
Name: 3X J& % �OtUt�VY � ht kr•, /()a
Assist•nt City Attorney
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Title: � `(Y\ akf-( 1•Xci -ev For City Attorney
BFI WASTE SERVICES OF TEXAS, LP D/B/A ALLIED WASTE SERVICES OF
CORPUS CHRISTI / REPUBLIC SERVICES OF CORPUS CHRISTI,
by Allied Waste Landfill Holdings, Inc., its General Partner
Name: 0, L1 iv
Title: c� �{•S: �o,t
BLUE RIDGE LANDFILL TX, LP,
by Allied Waste dfill Holdings, Inc., its General Partner
Name:71 .►��., M2Dis
nurc►��,
Title: V ` e Pr t)i c nt >sy COUNCIL., 6
CEFE LANDFILL TX, LP F/K/A BFI Elliott Landfill TX, LP, SECRETARY
by Al •ed Waste andfill Holdings, Inc., its General Partner
Name:)b y l7, til l i e l.`► vi-V"
Title: Y l "Pct 5 r Fl
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