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HomeMy WebLinkAbout4867 (2) RESOLUTION NO. 4 8 7 6 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE A SETTLEMENT AGREEMENT BETWEEN THE CITY OF AUBURN AND WASTE MANAGEMENT OF WASHINGTON, INC., RELATED TO MISSED PICKUPS WHEREAS, the City of Auburn ("City") has contracted with Waste Management, Inc. ("Waste Management') to collect garbage, recyclables, and compostable materials within the City; and WHEREAS, between July 25, 2012 and August 2, 2012, Waste Management failed to make scheduled pickups due to a labor strike, but expended additional efforts to return service to normal levels by August 11, 2012; and WHEREAS, as provided for in the contract, the City assessed performance fees against Waste Management for those missed pickups; and WHEREAS, Waste Management disputes both the City's authority to assess performance fees under these circumstances, and the amount of the fees assessed; and WHEREAS, the City and Waste Management agree that it is in the public interest for the parties to enter into an agreement to settle this dispute. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, HEREBY RESOLVES as follows: Section 1. That the Mayor and City Clerk are hereby authorized to execute a Settlement Agreement between the City and Waste Management, Inc., which agreement shall be in substantial conformity with the agreement attached hereto as Exhibit A and incorporated herein by this reference. ------------------------ Resolution No.4876 October 29, 2012 Page 1 of 2 Section 2. That the Mayor is authorized to implement such administrative procedures as may be necessary to carry out the directives of this legislation. Section 3. That this Resolution shall take effect and be in full force upon passage and signatures hereon. Dated and Signed this J day of 2012. ITY O fF1� .1 P TER B. LEWIS, MAYOR ATTEST (:�Z Danielle E. Daskam, City Clerk APP VE A FO RM:: D lel B. H i , City XftWey Resolution No.4876 October 29, 2612 Page 2 of 2 Exhibit A SETTLEMENT AGREEMENT This SETTLEMENT AGREEMENT("Agreement") is made and entered into between the CITY OF AUBURN, a municipal corporation of the State of Washington, and WASTE MANAGEMENT OF WASHINGTON, INC. ("WMW"). The parties shall be collectively referred to herein as the"Parties" and individually as a"Party",unless specifically identified otherwise. This Agreement shall be effective upon the date that all Parties have executed this Agreement (the"Effective Date"), as evidenced by the signatures below RECITALS WHEREAS the Parties entered into that certain Comprehensive Garbage, Recyclables and Compostables Collection Agreement Between the City of Aubum and Waste Management of Washington, Inc.,dated February 2011 pursuant to which WMW provides certain garbage,recyclables, and yard waste collection services within the City(the"Contract"); WHEREAS during the period beginning on or about July 25,2012 and continuing until approximately August 2, 2012 WMW experienced a labor strike which limited WMW's ability to collect garbage,recyclables,and yard waste materials from residential and commercial customers within the City,and then during the subsequent period continuing until approximately August 11,2012,WMW expended certain additional efforts to recover from the labor strike to return service to normal levels (collectively,this period of July 25,2012 through August 11,2012 which included both the labor strike and the recovery period will hereafter be referred to as the"Labor Strike");and WHEREAS the City has requested certain performance fees and other amounts related to the temporary disruption in service that occurred in connection with the Labor Strike, and the Parties have negotiated a resolution to these issues,upon the terms set forth herein, in order to avoid further dispute under the Contract and in the interest of preserving the strong business relationship between the Parties. TERMS AND CONDITIONS NOW,THEREFORE, in consideration of the mutual covenants and promises contained herein, the Parties agree,represent,and warrant as follows: 1. STATEMENT OF PURPOSE. This Agreement is for the purpose of resolving, compromising,and settling any actual or potential issue,claim, or dispute arising in connection with the temporary disruption in service that occurred as a result of the Labor Strike. The Parties have agreed to settle and compromise as set forth herein, and are satisfied that the temts and conditions of this Agreement are fair,adequate, and reasonable. 2. DEFINITIONS. Except as expressly defined herein,capitalized terms shall have the same meaning as in the Contract. 3. SETTLEMENT AMOUNT AND TERMS. 3.1 WMW has agreed to a total estimated settlement amount of$205,330,which is based on a credit of(a)$10 per Single-Fancily Residence,(b)$10 per Multi-Family Complex or Commercial Customer with Can or Cart collection service, and(c) $50 per Multi-Family Complex or Commercial Customer with Detachable Container collection service, as described more fully below(the"Settlement Amount"): Page 1 of 5 Settlement Agreement Auburn 5 per Accounts Account Total Single-Family Residences or Multi- Family Complexes/Commercial 11,983 $10.00 119,830 Customers with Can or Cart collection service Multi-Family Complex and Commercial Customers with 1,710 $50.00 85,500 Detachable Container collection service Total S205;330 3 1 The Parties acknowledge that the Settlement Amount is based on the number of customer accounts receiving regular(i.e.,weekly or every-other-week)collection services under the Contract. The calculation is based on only those accounts receiving regular collection services and shall not apply to other accounts,including but not limited to those accounts receiving on-call or temporary Drop-Box Container Garbage Collection services under Section 21.10 of the Contract, accounts for on-call or temporary customers under Section 2.2.12 of the Contract,any other on-call or temporary services, and City accounts with free service under Section 2.2.13 or Section 2.2.14 of the Contract. 3.2. The Parties agree that the number of Single-Family Residence,Multi-Family Complex,and Commercial Customer accounts referenced above are based on the best information currently available. The Parties acknowledge that the account totals are a reasonable estimate and may not be absolutely accurate;however,WMW shall be deemed to satisfy this Agreement by agreeing to the City's withholding of the Settlement Amount from the compensation otherwise owed to WMW 3.3.The Settlement Amount is intended to be a comprehensive figure,and the City agrees that it will not independently penalize WMW for any missed pickups or complaints related to service interruptions that occurred in connection with the Labor Strike,nor will the City administer any other deductions or fees related to unperformed services during this period. 4. ADMINISTRATIVE COSTS, In addition to the Settlement Amount,WMW agrees to pay to the City the amount of$20.000 as reimbursement of the additional administrative costs incurred by the City due to its unique role in billing and customer service under the Contract(the"Administrative Cost Reimbursement"),which were incurred during and after the Labor Strike(e.g.,fielding customer complaints,customer outreach and communication)and which will be incurred in implementing this Agreement(e.g., administrative costs of issuing customers credits,customer inquiries). 5. PAYMENT.WMW's payment of the Settlement Amount and Administrative Cost Reimbursement shall be satisfied by the City deducting 5225.330(i.e.,the Settlement Amount plus the Administrative Cost Reimbursement) from WMW's monthly compensation due and payable by November 25,2012 and continuing until the full amount has been withheld. Page 2 of 5 Settlement Agrcement-Aubum 6 CUSTOMER CREDITS. 6.1 As the City is responsible for billing under the Contract,the City shall be responsible for issuing customer credits,if any,to Single-Family Residence,Multi-Family Complex, and Commercial Customer accounts within WMW's service area in the City of Auburn. 6.2. Nothing in this Agreement grants any person, including any residential,multi- family residential,or commercial customer,any right, interest, or claim to the Settlement Amount. 6.3. WMW will cooperate with the City in providing information reasonably requested by the City to assist the City in providing credits to its Single-Family Residence,Multi-Family Complex, and Commercial Customer accounts. 7 RELEASES. 7 1 Each Party hereby agrees that the Settlement Amount fully resolves all claims that the City has made or could make for itself and/or on behalf of the City's residential and commercial customers relating to the disruption of solid waste,recyclables, and yard waste collection services during or in connection with the Labor Strike,including but not limited to all claims for damages,inconvenience,penalties,fines,performance fees, interest, and costs, contractual or extra-contractual,whether known or unknown. The City will fully and forever waive and release WMW and its officers,directors,members,shareholders, partners,employees, and attorneys(the"WMW Releasees") from, and agrees not to invoke contractual remedies,sue or initiate arbitration or other proceedings concerning,any and all claims,contentions, debts, liabilities, demands,promises,agreements,costs,expenses(including but not limited to attorneys'fees),damages, actions,or causes of action, of whatever kind or nature,whether now known or unknown, suspected or unsuspected,and whether based on contract,tort,statutory or other legal or equitable theory of recovery that arise from or are based in any manner upon any act or omission arising from or in connection with the Labor Strike, 7.2. WMW(including any corporate parents,affiliates and subsidiaries)does hereby fully and forever waive and release the City,on behalf of itself and its residential and commercial customers(the"City Releasees'l from,and agrees not to invoke contractual remedies,sue or initiate arbitration proceedings concerning,any and all claims,contentions,debts,liabilities, demands,promises,agreements,costs,expenses(including but not limited to attorneys'fees), damages,actions,or causes of action,of whatever kind or nature,whether now known or unknown,suspected or unsuspected,and whether based on contract,tort, statutory or other legal or equitable theory of recovery that arise from or are based in any manner upon any act or omission arising from or in connection with the Labor Strike. 7.3. The Parties' respective rights to enforce this Agreement and to seek relief for its breach are excluded from and not within the scope of the releases stated in Sections 7 1 and 7.2 above. S. NO ADMISSION OF LIABILITY This Agreement does not constitute and shall not be construed as an admission of liability Neither any payment,credit or any other consideration provided hereunder, nor the grant of any release shall be considered an admission by or against any Party,and no past or present wrongdoing on the part of the Parties shall be implied by such payment,other consideration,release,or entry into this Agreement. WMW and the City acknowledge that the Page 3 of 5 Settlement Agreement-Auburn Settlement Amount represents a compromise intended to avoid further dispute over the issues related to the labor Strike. 9. WSCELLANEOUS PROVISIONS. 9.1 Each Party represents and warrants that no other person or entity has,or has had, any interest in the claims, demands, obligations or causes of action referred to in and released pursuant to this Agreement;that each Party has the sole right and exclusive authority to execute this Agreement; and that each Party has not sold, assigned,transferred,conveyed or otherwise disposed of,by operation of law or otherwise, any of the claims,rights,demands,obligations or causes of action referred to in this Agreement. 9.2. This Agreement is a valid and binding agreement,enforceable in accordance with its terms against the Parties,and it shall be binding on and inure to the benefit of the Parties and their respective legal representatives,successors and/or assigns. This Agreement has been negotiated by the Parties and their respective counsel and shall be interpreted fairly in accordance with its terms and without any strict construction in favor of or against either Party. No ambiguity or omission in this Agreement shall be construed or resolved against any Party on the ground that this Agreement or any of its provisions was drafted or proposed by that Party. 9.3. This Agreement is made solely and specifically among and for the benefit of the Parties hereto,and their respective successors and assigns, and no other person will have any rights,interest,or claim hereunder or be entitled to any benefits under or on account of this Agreement,whether as a third party beneficiary or otherwise. 9 4 The section headings used in this Agreement are intended for reference purposes only and shall not affect the interpretation of the Agreement. 9.5.This Agreement shall be governed by and construed in accordance with the laws of the State of Washington,without regard to principles of conflicts of laws, as applicable to agreements made and to be performed entirely within Washington. The exclusive venue and fonun for any dispute regarding this Agreement shall be the state or federal court located in King County,Washington, The prevailing party in any action arising from or relating to this Agreement,including but not limited to any action to enforce this Agreement,shall be entitled to reasonable attorneys' fees and costs. 9.6. This Agreement will be effective as of the Effective Date. This Agreement may be executed in counterparts,including facsimile and email/PDF,each of which when so executed and dOivered shall be deemed an original,and such counterparts taken together shall constitute one instrument. 9.7 In entering into this Agreement,neither Party has made any representations or warranties,and neither Party has relied upon any representations or warranties,other than those representations and warranties expressly stated in this Agreement. 9.8. If any provision of this Agreement or the application thereof is held invalid,the invalidity shall not affect other provisions or applications of this Agreement that can be given effect without the invalid provision or application and,to this end, the provisions of this Agreement are declared to be severable. 9.9 This Agreement contains the sole and entire agreement between the Parties with respect to the matters set forth herein,supersedes any and all prior or other agreements with respect to the matters set forth herein(including but not limited to the Contract), and may not be Page 4 of 5 Settlement Agreement-Aubum changed,amended,modified,terminated,waived or discharged except in a subsequent written agreement by the Parties hereto. Each Parry represents and acknowledges that it has read this Agreement,has had opportunity to consult with its legal counsel regarding this Agreement, is satisfied that the terns and conditions are fair, adequate and reasonable, and fully understands and agrees to its terms. w + w IN WITNESS WHEREOF,the Parties enter into this Agreement. Each person signing this Agreement represents and warrants that he or she has been duly authorized to enter into this Agreement by the Parry on whose behalf it is indicated that the person is signing. WASTE MANAGEMENT OF THE CITY OF AUBURN WASH INGT , C. By. By — —� Name: Robert C. Shemtan Name: Peter B.Lewis Title: Vice President Title: Mayor Date: /0 -.a Y-r 2 Date: Pages of 5 Settlement Agreement Auburn