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HomeMy WebLinkAboutC2018-668 - 10/30/2018 - Approved t 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 2 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 3 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. 4 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 5 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.] 6 r IN WITNESS WHEREOF, the Parties have executed this Agreement by their duly authorized representatives. CITY OF CORPUS CHISTI ATTEST: � / �- B /ii // RE=SCCA HUERT � ~ /,y' %�� Approved as to form: / 1 Name: 3X J& % �OtUt�VY � ht kr•, /()a Assist•nt City Attorney ��� "�� 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 7