HomeMy WebLinkAboutCity of Tamarac Resolution R-2011-113Temp Reso #12096
Page 1
September 14, 2011
1
CITY OF TAMARAC, FLORIDA
RESOLUTION NO. R-2011[
A RESOLUTION OF THE CITY COMMISSION OF THE
CITY OF TAMARAC, FLORIDA, APPROVING THE
SETTLEMENT AGREEMENT WITH ACE WASTE
SERVICES, LLC, AND AUTHORIZING THE
APPROPRIATE OFFICIALS TO EXECUTE THE
SETTLEMENT AGREEMENT WITH ACE WASTE
SERVICES, LLC, RESOLVING THE LITIGATION ACE
WASTE SERVICES, LLC V. CITY OF TAMARAC
PENDING IN THE CIRCUIT COURT OF THE
SEVENTEENTH JUDICIAL CIRCUIT, CASE NUMBER
10-22554 (14); PROVIDING FOR CONFLICTS;
PROVIDING FOR SEVERABILITY; AND PROVIDING
FOR AN EFFECTIVE DATE.
WHEREAS, the City of Tamarac ("City") is presently a defendant in the litigation
known as Ace Waste Services, LLC, v. City of Tamarac currently pending in the Circuit
Court of the Seventeenth Judicial Circuit, in and for Broward County, Florida, Case No.
10-22554(14) ("Litigation"); and
WHEREAS, the parties to the above pending Litigation have negotiated a
settlement agreement which would resolve all outstanding claims either party may have
in the Litigation, and result in the conclusion of the Litigation between the parties
("Settlement Agreement"); and
WHEREAS, the City desires to enter into the Settlement Agreement with Ace
Waste Services, LLC; and
1
Temp Reso #12096
Page 2
September 14, 2011
WHEREAS, the City Commission of the City of Tamarac deems it to be in the
best interest of the citizens and residents of the City to authorize the appropriate
officials to execute the Settlement Agreement, resolving the Litigation.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY
OF TAMARAC, FLORIDA THAT:
SECTION 1: The foregoing "WHEREAS" clauses are HEREBY ratified
and confirmed as being true and correct and are hereby made a specific part of this
Resolution upon adoption hereof and all exhibits attached hereto are incorporated
herein and made a specific part of this resolution.
SECTION 2: The City Commission of the City of Tamarac approves the
Settlement Agreement between the City and Ace Waste Services, LLC, a copy of which
is attached hereto as Exhibit "A". .
SECTION 3: The City Commission of the City of Tamarac hereby
authorizes the appropriate City officials to execute the Settlement Agreement.
SECTION 4: All Resolutions or parts of Resolutions in conflict herewith
are HEREBY repealed to the extent of such conflict.
SECTION 5: If any provision of this Resolution or the application thereof
to any person or circumstance is held invalid, such invalidity shall not affect other
provisions or applications of this Resolution that can be given effect without the invalid
provision or application, and to this end the provisions of this Resolution are declared to
be severable.
1
1
1
1
1
SECTION 6.:
passage and adoption.
Temp Reso #12096
Page 3
September 14, 2011
This Resolution shall become effective immediately upon its
PASSED AND ADOPTED BY TH CITY COMMISSION OF THE CITY OF TAMARAC,
FLORIDA THIS �2,q_ DAY OF 2011.
BY: La,__:;�LA
APAMELA BUSHNELL, MAYOR
RECORD OF COMMISSION VOTE
PETER RICHARR§PN
CITY CLERF�`\\` J NMA �'�'�., MAYOR BUSHNELL
�'% DIST 1: COMM. SWENSON
,` : •'•. �: DIST 2: V/M, GOMEZ
U �SNEo o DIST 3: COMM. GLASSER
�SZP 63 : cX,DIST 4: COMM. DRESSLER
�9 ' O::
I HEREBY GPI FY.thasx,
Have approvWdI CO l\\\\`
RESOLUTION as to %rm.
SAMUEL S. GOREN
CITY ATTORNEY
H:\2005\050164 TAMARAMRESO 2011\TR #12096 (Ace Waste Settlement Agreement).docx
ACE WASTE SERVICES, LLC
Plaintiff,
►A
CITY OF TAMARAC, FLORIDA,
Defendant.
IN THE CIRCUIT COURT OF THE 17"
JUDICIAL CIRCUIT IN AND FOR
BROWARD COUNTY, FLORIDA
Case No. 10-22554 (14)
SETTLEMENT AGREEMENT
KNOW ALL MEN BY THESE PRESENTS:
That ACE WASTE SERVICES, LLC ("ACE"), and the CITY OF TAMARAC
("City") (collectively the "Parties"), for the good and valuable consideration set forth below,
do hereby agree to the following:
WHEREAS, the Parties entered into a Service Contract dated April 13, 2005
("Service Contract"), relating to the furnishing of commercial solid waste collection services
in the City;
WHEREAS, certain disputes arose between the Parties with respect to the Service
Agreement,
WHEREAS, the City intends to take the measures necessary to provide residential,
multi -family, and commercial solid waste disposal solid waste disposal services through one
City-wide franchise;
M
ACE Waste Services, LLC v. City of Tamarac
Case No.: 10-22554 (14)
WHEREAS, the Parties are engaged in the litigation known as ACE WASTE
SERVICES, LLC, v. CITY OF TAMAR_AC, Case Number 10-22554 (14), now pending in
the Circuit Court of the Seventeenth Judicial Circuit in and for Broward County (hereinafter
the "Litigation"); and
WHEREAS, the Parties desire to amicably resolve their disputes, differences, and the
issues raised in pending Litigation.
NOW THEREFORE AND IN CONSIDERATION of the mutual promises set forth
herein, the Parties agree as follows:
The foregoing WHEREAS clauses are incorporated as if fully set forth herein.
2. The Parties have negotiated an amendment to the Service Agreement the terms
of which are set forth in the First Amendment to Commercial Garbage Franchise Agreement
Between the City of Tamarac And Ace Waste Services, LLC ("First Amendment"), a true
and correct copy of which is attached hereto as Exhibit "A."
3. The Parties agree that upon the City's approval of the First Amendment, and
the Parties respective execution of same, the Parties will file a Stipulation for Dismissal with.
Prejudice and proposed Final Order of Dismissal with Prejudice with the above -described
Court. Copies of the Stipulation for Dismissal with Prejudice and proposed Final Order of
Dismissal with Prejudice are attached hereto as Exhibits "B" and "C" (respectively).
IPA
ACE Waste Services, LLC v. City of Tamarac
Case No.: 10-22554 (14)
IN WITNESS WHEREOF, the Parties hereto have made and execute this Settlement
Agreement on the respective dates under each signature, the City of Tamarac signing through
its City Manager and its City Commission signing by and through its Mayor, and Ace Waste
Services, LLC, signing by and through their designated and duly authorized representative.
IA.. A
�q ATTEST:
y �S��D
r t3 �SI .9��raS • X `
Peter Richardson, City Clerk
Date: / v l )
APPROVED AS TO FORM:
Office of the City Attorney
Date:_ Q � -3 b l
-3-
CITY OF TAMARAC, FLORIDA
By: PA,&,L &,L ( I
Pamela Bushnell, Mayor
Date: 1
ACE Waste Services, LLC v. City of Tamarac.
Case No.: 10-22554 (14)
ACE WA$TE SERYlfES, LLC.
M.
Prin f Dame: JAMES E4 Y
v�.
Position: MANAGING MEMBER
Date: AUGUST 23, 2011
In the presence of witnesses:
Print name: Je+� AYE V\
Date:— S [;3 I 1
Print Name: �vJZ-
Date: �) �3! ► c
Print Name:`? "4s6A-1 n�s%�
Date:_ ' Z d
-4-
JR.
ACE Waste Services, LLC v. City of Tamarac
Case No.: 10-22554 (14)
STATE OF FLORIDA)
COUNTY OF BROWARD )
Before me personally appeared SR me S S- F->°-e Ik of Ace Waste Services, LLC,
who is personally known to me or has produced as i entificatio and is
the person described in and who executed the Settlement Agreement, and acknowledged
execution of the Settlement Agreement as the proper officer of Ace Waste Services, LLC,
for the use and purposes mentioned in it, and that the Settlement Agreement is the act and
deed of Ace Waste Services, LLC.
WITNESS my hand and official seal this day of �5i ,
2011. ql
Notary Public, State of Florida At l.,arge
OUTgqr,,9
r`\�����Q•1 A��e��f..
-� • Q� � opFN . F'= Print...Na � �P.•' �510N � _
4 •� j • * w me of Notary
i
S 4, D �38126 ; ci
WIG
-5-
First Amendment to Commercial Garbage Franchise Agreement
Between the City of Tamarac
And
Ace Waste Services. LLC
This First Amendment to the Commercial Garbage Franchise Agreement between
the City of Tamarac ("City") and Ace Waste Services, LLC ("Contractor") is made and
entered into this '-day of 2011.
WITNESSETH
WHEREAS, the City and Contractor entered into a Service Contract dated April
1.3, 2005 ("Service Contract"), relating to the furnishing of commercial solid waste
collection services in the City; and
WHEREAS, Section 4.1 Primary Term of the Service Contract states, "the term of
this Contract shall be on a month -to -month basis until such time as the City chooses to
terminate the Service Contract upon the Conclusion of any thirty (30) day period;"
WHEREAS, the Service Contract may be renewed for a longer term (section 4.2)
subject to the City Commission adopting new standards or requiring a new contract, and
the City and Contractor agree to a new term that will expire on a clearly defined date
certain; and
WHEREAS, the City, in accordance with Section 403.70605, Florida Statutes.
provided, via correspondence dated August 19, 201.0 notice to Contractor of a public
hearing before the City Commission regarding the City's intent to take measures
necessary to provide residential and multifamily solid waste disposal services through One
city-wide franchise, and via correspondence dated August 30, 2011 provided notice to
Contractor of a public hearing before the City Commission regarding the City's intent to
take measi.tres necessary to provide residential, multi -fancily, and commercial solid waste
disposal services through one city-wide franchise; and
WHEREAS, the City Commission did hold such a public hearing on October 27,
2010.aicd decided to implement measures to provide ressidential, multi -family, and
commercial solid waste disposal services through one city wide franchise; and
WHEREAS, Section 403,70605, Florida Statutes provides that a local government
may not: displace a private provider of waste disposal services without first holding at least
one public hearing after appropriate public notice and written notice to the appropriate
providers of waste disposal services; and
WHEREAS, the October 27, 2010 public hearing served as the commencement.
date for any three (3) years' notice period which may be applicable pursuant to Section
403.70605(3)(c), Florida Statutes, and
WHEREAS, pursuant to section 4.2 of the Service Contract, the City and
Contractor desire to establish the time period for the Renewal Term of the Service
Contract by changing the term of the Service Contract to continue up to and including
October 27, 2013, in order to comply with the applicable three (3) year notice period
provided by Section 403.70605(3) (c), Florida Statutes; and
WHEREAS, during the Renewal term the Contractor may continue to provide the
same service it was providing on the date of the public hearing, October 27, 2010; and
'WHEREAS, the Service Contract between the City and Contractor provides for a
franchise fee, deemed a Street Use Fee, for the right to operate within the corporate limits
of the City; and
WHEREAS, the City and Contractor agree to amend the Service Contract by
amending the franchise fee applicable to Contractor's operations within the City from ten
percent (10%) of gross receipts to the prevailing market rate of twenty percent (20%) of
gross receipts; and
NOW THEREFORE, in consideration of the mutual promises contained herein,
the parties agree as follows:
The foregoing WHEREAS clauses are incorporated as if fully set forth herein.
2. Section 3, Street use Fee is amended to read as follows:
In consideration of the grant contained in Section 2 hereof, the Contractor
hereby agrees to pay to the City as compensation for the right to use its streets, alleys and
thoroughfares an amount ("Street Use Fee") equal to twenty percent (20%) of its Gross
Receipts from commercial Solid Waste Customers within the corporate lirnits of Tamarac.
Payments shall be due no later than thirty (30) days after the end of the month.
The Contractor shall provide to the City notarized monthly and annual statements
signed by an authorized representative of the Company. Statements should accompany
payments and identify in detail the categories and amounts of Gross Receipts received by
the Contractor, based on the records of the Contractor during the month for which
payment is made related to the Contractor's performance under this contract. if
Contractor fails or refuses to make such reports and payments, the City may maintain an
action against the Contractor to recover the same and all expenses of collecting dame,
including reasonable attorney fees.
2
3.1 Future Revenue. In the event Contractor est tbli0e! any other methods of Collection
and disposal of Solid Waste, the City Shall establish, at that time a percentage of Gross
Receipts from such Collection method to be calculation of amounts due.
3.2 Delinquency Provision. In the event Contractor fails to make the payment for this
Franchise on or before the date sue as herein above provided, the Contractor shall pay an
interest charge for ach month, or a fraction thereof, that payment is late. An Interest
Factor shall be based on the prime rate the Chase Manhattan Sank, N.A., plus one percent
0 %). Calculation will be illustrated as follows:
Prime Rate + 1% / 365 days = Daily Interest Rate (DIR)
DIR x Days Payment Late = Interest Charge
Note: Regardless of the foregoing, the interest rate referred to
in this section will comply with all applicable state laws.
Section 4, term is amended to read as follows:
Section 4 Term
The Renewal Term of the existing Service Contract shall commence upon
execution of this Amendment by the City, and shall continue up to and
including October 27 2013,.unless terminated on an earlier date bL the
City for cause after written notice to Contractor of default and opportunity
to cure as set forth in Section 16.1 of the existing Agreement. The City
may only terminate the Agreement for cause following no less than thirty
h clays written notice to the Contractor and failure of Contractor to cure
default pursuant to Section 16.1 of the existing Agreement. Subject m I to
the Cit 's right to terminate the Agreement for cause under Section 16.1 of
the existing Agreement, the Agreement shall termina
te no sooner than
October 27, 2013.
•
�e1JL•Sil�
�y �ui�■• ue. �■s�. Muu i.�w�u ���.w•
eLJLL+!'
■ uui�eu�■aun:�.ua�u.av��u
�z� •�w•wi�.www�■� r �■e�r -
►�tiu.,.n.�asw��uwi�u.urFiw�wi.�.r►�11uu.��rr�iiin■•�.�y� -
iCi►R
4. Section 5, General Statement of Contractor's Obligations; Scope of Services is
amended by including the following additional language:
Nothing herein shall permit the Ci- ty to restrict or prohibit Contractor frond
servicing existinp, commercial Solid Waste Customers or soliciting new
commercial Solid Waste Customers during the Renewal Term of this
Service Contract .
5. The Contractor acknowledges and agrees that the City has complied with all notice
provisions contained in Section 403.7060.5(3), Fla. Stat. And, the Contractor agrees that
upon the conclusion of the Renewal Term on October 27, 2013, the Contractor's
Commercial Garbage Franchise within the boundaries of the City will terminate.
6. The April 13, 2005 Service Contract between City and Contractor and all
subsequent amendments and addenda thereto not subject to this or other duly executed
amendments and addenda remain in full force and effect. Failure to specifically delineate
any prior terms or conditions in this Amendment does not operate to relieve City or
Contractor of any obligations pursuant to the Agreement or waive any rights contained
therein.
7. The effective of this date of this Agreement shall be date of execution by the last
party to execute.
[All signatures on the following page]
4
IN WITNESS WHEREOF, the parties hereto have made and execute this
Amendment to Commercial Garbage Franchise Agreement on the respective dates under
each signature, the City of Tamarac signing through its City Manager and its City
Commission signing by and through its Mayor, and Ace Waste Services, LLC, signing
by and through, Z A MES, FEE t-4 , duly authorized to do the same.
ATTEST:
CITY OF TAMARAC, FLORIDA
By: L tL '& L, (/ -
Pam -[a Bushnell, Mayor
Date: °1 �L�I t 1
Peter Richardso C Clerk -
Date: . _. ? \.°°�� 'SAMAi'",,
APPROVED AS TO FORM:
� --CL gb,3
Office of th City Attorney d',�L
Date:__ �_. 0. '
5
ACE WASTE SERVICES, LLC,
Signed and
BY
In the prese
Pri r
Titlei.`MANAGING MEMBER
Date: AUGUST 23, 2011
Z1•,t�c�so�n
Print Name
Date:__
Pr' t Name
Die — --- 2 3 11-
6
STATE OF FLORIDA )
COUNTY OF BROWARD )
Before me personally appeared James Feeley, Jr., Managing Member of Ace
Waste Services, LLC, who is personally known to me or has produced
fi 4 o� So -SIB- 0 as dentification o be the person described in and who executed the
foregoing Agreement, and acknowledged execution of the foregoing Agreement as the
proper officer of Ace Waste Services, LLC, for the use and purposes mentioned in it, and
that the Agreement is the act and deed of Ace Waste Services, LLC.
rd
WITNESS my hand and official seal this day of , 201 1.
Notary .Public, State of Florida
At Large
--/V a ��-- t.c4r.�-
Print Name of Notary
7